Shaifali Tambe And Ors vs Dr.Shajid Tambe And Ors

Both husband and wife, whose marriage could not work and who are living separately since 2016 i.e. within a year of marriage, have preferred these counter petitions.

Wife, who is granted maintenance of Rs.8,000/- per month in her favour and Rs.5,000/- in favour of her minor 3 years old son, is dissatisfied with the quantum and husband also feels himself aggrieved by the grant of maintenance as well as quantum of maintenance. Wife has come for enhancement and husband has come for rejection or atleast reduction in the quantum of maintenance.

Marriage and separate living of both the parties, is not disputed.

As per statement made by the husband, he has already divorced his wife by Talak-Ae-Biddat commonly known as Triple Talak by sending a post card along with the amount of Mehar settled at the time of marriage and the same is received by the wife.

Wife has denied this fact stating that even she has filed a petition for restitution of conjugal rights.

Further, it is not disputed between the parties that husband is MD Radiologist and wife is double MBA.

It is contended by the wife that husband runs a Diagnostic Center in Pune in the name and style of "A.B Diagnostic Center" and he also provides his service in KEM Hospital.

Husband has claimed that wife also works and earns a lot. He claims that wife also files ITR showing her income more than Rs.2,00,000/- and she has fixed deposits of more than Rs.40,00,000/- and earns handsome interest on such deposits.

First objection of the husband is that wife is not entitled for any maintenance as she has already divorced by the husband.

Learned counsel has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Latif Vs. Union of India reported in AIR 2001 SC 3958, later followed in Ikbal Bano VS State of UP reported in 2007(5) Supreme 1998.

To counter the contention of the husband, learned counsel for the wife invited my attention to the Explanation B appended to the proviso to section 125 of the Cr.P.C, which shows that "wife includes a woman, who has been divorced by, or has obtained divorce from, her husband and has not remarried".

There is not dispute that wife has not remarried yet.

Learned family Court has considered income tax return of the husband showing his taxable income of Rs.14,98,000/- per annum in the year 2016-17.

Challenging this observation of the learned family Court, the learned counsel for the husband has submitted that after deducting all expenses, net income of the husband comes to the tune of Rs.2,80,454/-, which is shown in the ITR of the year 2016-17 itself, and these deductions are not considered by the learned family Court, but this contention of the learned counsel for the husband is misconceived. The figure mentioned by the learned counsel is a figure of total tax and interest payable and not the net income as claimed by the husband.

Impugned order passed by the learned family Court does not reflect that the issue of entitlement of the wife for getting maintenance was raised before the learned family Court.

Both the parties have come before this court against the order of interim maintenance and they have opportunity to raise all such grounds before the learned family Court.

Interim maintenance is an interim measure to provide and to support the estranged wife to survive. Question of entitlement of the Muslim divorce woman is considered by the Hon'ble the Supreme Court in Shabana Bano Vs. Imran Khan passed in CRA No.2309/2009 arising out of SLP (Cri.) No.717/2009 dated 04.12.2009 and it is held that such woman is entitled for maintenance under section 125 of the Cr.P.C fro her husband.

Object of the interim maintenance has been considered by the Hon'ble Supreme Court time and again. It is stated in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 : (1979 Cri. LJ 3) and in Chturbhuj Vs. Sita Bai AIR 2008 SC 530 that this provision is a measure of social justice and specially enacted to protect women and children. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was again highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

Further in Bhuwan Mohan Singh v. Meena and Ors. AIR 2014 SC 2875 the Apex Court expressed that the maintenance is obligation of the husband and that Section 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman, who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. Husband had to maintain them. In fact, it is the sacrosanct duty to render the financial support. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

Again in Shamima Farooqui Vs. Shahid Khan AIR 2015 SC 2025 the Apex Court not only discussed the object of the provision but also explained as to what does sustenance mean. The Court held that the object of S. 125 is amelioration of financial status of wife so that she can sustain herself and sustenance cannot mean mere survival. Quantum of maintenance has therefore to be so fixed that she is entitled to lead a life in similar manner as she would have lived in house of her husband. Para 15 of the judgement is as follows:

The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125, Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125, CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125, CrPC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge Dehradun and Ors. (1997) 7 SCC 7 : (AIR 1997 SC 3397) has held as follows:-

"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."

Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC 316 : (AIR 2008 SC 530), it has been ruled that:-"Section 125, CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 : (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636 : (AIE 2005 SC 1809)." This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 18. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.

It is asserted in Badshah v. Sou. Urmila Badshah Godse 2014 AIR SCW 256 purposive interpretation needs to be given to provision of S. 125 and it is bounden duty of Courts to advance cause of social justice. It is a settled proposition of law that the wife is entitled to a financial status equivalent to that of the husband. In para 8 of the judgement, the Court stated:

under Section 125 Cr.P.C. the test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C."

Though, the husband has claimed that wife earns a lot through her profession and through her savings/deposits but no documents to prima facie support this contention is produced on record while the wife has produced income tax return which has been considered by the learned family Court while passing the impugned order.

I have considered and have carefully gone through the documents produced by the parties as well as their appreciation by the learned Family Court.

Looking to the income of the husband and the fact that nothing is before this court to show at this stage that wife is working somewhere and is earning something. I feel that the compensation awarded by the learned Family Court is on lesser side.

Keeping in view the status and income of the husband and other facts and circumstances of the case, in the opinion of this Court, Rs.15,000/- in favour of the wife and Rs.10,000/- in favour of the minor children total Rs.25,000/- maintenance, therefore, the order of the learned family Court is modified accordingly.

The husband is directed to pay the maintenance as determined above.

With the aforesaid modification, the present petitions stand disposed off.