1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Order reserved on : 12.02.2024

Order delivered on : 12/04/2024

CRR No. 619 of 2022

1.Smt. Neha Thakur W/o Durgesh Thakur, Aged About 23 Years

R/o House No. 750, Madhuban Nagar Ward No. 51, Borsi P.S.

Pulgaon, Tahsil And District Durg, Chhattisgarh.

2.Rishika D/o Durgesh Thakur, Aged About 1-1/2 Years, Through Her

Legal Guardian, Mother Smt. Neha Thakur W/o Durgesh Thakur R/o

House No. 750, Madhuban Nagar Ward No. 51, Borsi P.S. Pulgaon,

Tahsil And District Durg, Chhattisgarh.

---- Applicants

Versus

•Durgesh Thakur S/o Balmiki Thakur, Aged About 30 Years

R/o Village Rajoli, P.S. Rajoli, Tahsil Gunderdehi, District Balod (C.G.)

Department Address- Constable (Chhattisgarh Special Force), Behind

Police Station Durg, Police Quarter, Tahsil & District Durg (CG).

---- Non-applicant

For Applicant : Mr. T. K. Jha, Advocate

For Non-applicant : Mr. Galib Dwivedi, Advocate

Hon'ble Shri Justice Parth Prateem Sahu

C A V ORDER

1.Applicant has filed this revision questioning the legality and

sustainability of the order dated 30.04.2022 passed by the

learned 2

nd

Additional Principal Judge, Family Court, Durg (CG)

in MJC No.1276 of 2016 whereby learned Family Court has

allowed the application under Section 125 of Cr.P.C. filed by

applicants in part and awarded maintenance to the tune of Rs.

4,000/- to applicant No. 1 and Rs. 2,500/- to applicant No. 2.

2.Facts relevant for disposal of this revision are that applicant No. 1 2024:CGHC:13105

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married with the non-applicant on 14.12.2015. From their

wedlock they were blessed with applicant No. 2. After some time

of marriage, applicant was harassed, ill-treated on account of

demand of dowry of Rs. 3,00,000/-. Applicant No. 1 was also

assaulted at times by the non-applicant due to which applicant

No. 1 has lodged report in the concerned Police Station, based

upon which, crime for offence under Section 498A, 34 of IPC and

Section 4 of Dowry (Prohibition) Act, 1961 was registered on

09.12.2016. The applicants filed an application seeking

maintenance of Rs. 10,000/- per month. During pendency of the

application, it was amended and applicant No. 2 herein was also

added as applicant No. 2 in the application under Section 125 of

Cr.P.C.. Application under Section 125 of Cr.P.C. was replied by

non-applicant denying all the adverse pleadings made therein

and further added that applicant No.1 herself is not interested in

residing with non-applicant. He wants to continue the

relationship, keep applicants with him and to maintain them.

Applicant No. 1 is residing separately without any sufficient

cause, hence, application be rejected. The learned Family Court

enquired into the application and based on the documentary and

oral evidence brought on record by the respective parties,

allowed the application in part and held that applicant No. 1 is

having sufficient reasons for not residing in the company of the

non-applicant. Considering the salary of non-applicant, as

mentioned in the salary slip and further taking note of the fact 2024:CGHC:13105

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that non-applicant is paying a sum of Rs. 15,000/- to his parents

i.e. 7,500/- each to mother and father, has allowed the

application in part and awarded Rs.4,000/- per month to applicant

No. 1 and Rs. 2,500/- to applicant No. 2.

3.Learned counsel for applicant submits that the learned Court

below erred in awarding meager sum of Rs. 4,000/- to applicant

No. 1 (wife) and Rs. 2,500/- to applicant No. 2 (daughter). Non-

applicant no. 1 is getting salary of rs. 39,000/- per month and as

per the decision of Hon’ble Supreme Court dated 19.04.2017 in

civil appeal no.5367/2017 (kalyan dey chowdhury vs. Rita Dey

Chowdhury) applicant wife herself is entitled for at least one-

fourth of the salary of non-applicant (husband). He contended

that income of salary as concluded by learned Family Court is

39,000/- per month and therefore, the learned Family Court ought

to have awarded at least Rs.10,000/- per month in favor of

applicant No. 1 and further amount of Rs. 5,000/- in favor of

applicant No. 2. He submits that application stated to have been

filed by parents seeking maintenance is artificial, only to dislodge

applicants from seeking appropriate amount of compensation for

meeting their day to day needs. Application under Section 125 of

Cr.P.C. filed on behalf of parents is filed during pendency of the

application under Section 125 of Cr.P.C. filed by applicants and

within short period, non-applicant in settlement before the Lok

Adalat agreed to pay Rs. 7,500/- each to father and mother

(totaling sum of Rs. 15,000/- per month). The order obtained for 2024:CGHC:13105

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payment of the sum of Rs. 15,000/- per month to his parents is

illusionary only to defeat the rights of applicants. Non-applicant is

not in actual terms paying the amount of maintenance awarded in

favor of parents of non-applicant.

4.Learned counsel for non-applicant opposes the submission and

would submit that applicant No.1 left the company of non-

applicant without there being any cause, with her own will and

choice. Non-applicant have made several attempts to settle the

dispute, if any, and to brought applicants in his house. However,

applicant No. 1 refused to reside in the company of non-

applicant. Non-applicant is having age old parents and is having

liability to maintain them. Apart from it, non-applicant is having

two sisters and is having the liability of them also. Non-applicant

has obtained loan and has to repay the loan amount. He has to

deposit installment of Rs.18,000/- per month, after payment of an

amount of maintenance pursuant to the order passed by Lok

Adalat to his parents and making payment of maintenance of the

amount awarded in favor of applicant, non-applicant is not having

any balance to pay more than the amount awarded by the

learned Family Court. Much more amount than the income and

savings of non-applicant could not be awarded as maintenance.

5.I have heard learned counsels for the respective parties and also

perused the record of learned Family Court. 2024:CGHC:13105

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6.Perusal of the record would show that learned Family Court after

considering the pleadings, documentary and oral evidence

brought on record by respective parties held that applicants are

having sufficient cause for residing separately from her husband

and thereafter proceeded to calculate the amount of maintenance

to be awarded to applicant. The finding of learned Family Court

with regard to entitlement of maintenance to applicants is not put

to challenge by non-applicant hence, the said finding of learned

Family Court attained finality. In this criminal revision, applicants

have prayed for enhancing the amount of maintenance awarded

by learned Family Court. In application under Section 125 of

Cr.P.C., applicants have prayed for Rs. 10,000/- each to

applicant No. 1 and applicant No. 2 (totaling Rs. 20,000/- per

month) as maintenance. In the affidavit of assets and liabilities, it

is mentioned that applicant No. 1 is not having any source of

income, no assets (movable or immovable) of her own. Details of

liabilities of deponent to be nil and income of non-applicant

shown as in the year 2016 as Rs. 39,000 per month. In evidence,

applicants have brought salary slip as Exhibit P – 1 showing the

income of non-applicant as Rs. 29,993/- and net salary as Rs.

26,812/-. The salary slip was of March, 2018. Another salary slip

is produced as Exhibit P – 2 of the month of February, 2021 in

which the gross salary is shown as 40,820/- and net salary as

37,126/-. The deduction from the gross salary is 3,694 i.e.,

towards G.P.F. and G.I.S.. In evidence, non-applicant in affidavit 2024:CGHC:13105

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under Order 18 Rule 4 CPC stated that he is getting salary of Rs.

39,000/-, depositing Rs. 18,000/- towards repayment of loan,

making payment towards maintenance to his parents of Rs.

15,000/- and further Rs. 5,000/- as interim maintenance to

applicants (totaling amount of payment which is shows is Rs.

38,000/-). In the facts of the case and the submission made by

learned counsels for the respective parties, the moot question for

consideration of this Court is what will be the reasonable amount

of maintenance to be awarded to applicants?

7.In the fact of the case it is to be seen whether applicants, who are

wife and daughter of non-applicant, will able to be maintain

themselves in accordance with the comfort of the husband of

applicant No. 1 and father of applicant No. 2.. Non-applicant

along with covering memo dated 11.01.2024 has placed on

record the copy of the order dated 11.09.2021 passed by

National Lok Adalat held at Durg. Perusal of the award passed by

Lok Adalat would show that the case No. is mentioned as MCRC

No. 282 of 2021 meaning thereby the application seeking

maintenance by parents of non-applicant was filed in the year

2021 whereas applicants have submitted the application under

Section 125 of Cr.P.C. on 7.4.2017 before filing of application by

parents. Non-applicant without any demur made submission

before the learned Family Court that he is ready to pay Rs.

15,000/- per month to applicants therein. Non-applicant on the

date of entering into compromise in the proceedings under 2024:CGHC:13105

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Section 125 of Cr.P.C. was well aware that he is having liability

and duty to maintain his family i.e. wife and children apart from

his parents and further the proceedings under Section 125 of

Cr.P.C. filed by applicants was pending since 2017 i.e. about last

four years, prior to entering into the settlement by non-applicant

with his parents.

8.It appears that non-applicant has not disclosed that one more

application under Section 125 of Cr.P.C. is pending consideration

on the be-haste of his wife and daughter and entered into

settlement. If there had been fairness in the step taken by non-

applicant, he could have got both the matters listed together

before learned Family Court and ought to have settled the issue

of making payment of amount of maintenance to parents as also

the wife on the same date to which he has not made any effort. In

view of the submission made by counsel for applicant, this Court

has also glanced the record with regard to complying the order

passed by Lok Adalat of making payment of Rs. 15,000/- per

month to his parents. In the record, non-applicant has not placed

any proof that pursuant to order passed by learned Family Court,

directing non-applicant to pay Rs. 15,000/- per month towards

maintenance to his parents, non-applicant is regularly depositing

or paying the amount of maintenance awarded to his parents.

9.Considering the rival submission made by learned counsel for

respective parties before this Court with regard to depositing/not 2024:CGHC:13105

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depositing the amount of Rs. 15,000/- as ordered by Lok Adalat,

this Court made certain observation, upon which, learned

counsel for non-applicant in the proceedings dated 12.01.2024

prayed for time to place on record the application under Section

125 of Cr.P.C. filed by parents of non-applicant as also the proof

of payment of Rs. 15,000/- per month to his parents. When the

case was listed on 05.02.2024, learned counsel for non-applicant

again took time and thereafter the case was listed on 12.02.2024,

however, even after granting sufficient time to learned counsel for

non-applicant, he could not place any record with regard to

application field under Section 125 of Cr.P.C. by the parents of

non-applicant as also any document to prove that non-applicant,

complying with the order passed by Lok Adalat, is regularly

paying the amount of maintenance as order in favor of parents of

non-applicant.

10.From the aforementioned facts, discussion and the contents of

non-applicant in entering into settlement to pay amount of Rs.

15,000/- per month, it is prima facie appearing to this Court that

settlement of non-applicant with parents for paymentof

maintenance to the tune of Rs.15,000/- is not in actual sense but

to defeat the right of applicants from getting actual and

reasonable amount of maintenance for their survival.

11.The law regulates relationship between people and also

prescribe pattern of behavior. It reflects the value of society. Role 2024:CGHC:13105

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of Court is to understand the purpose of law in society and to

held the law achieve its purpose. Law of society is a living

organism. The Court, as interpreter of law, is suppose to settle

omissions, correct uncertainties and harmonize result of justice

through a method of free decision.

12.Hon’ble Supreme Court in the case of Rajnesh Vs. Neha and

another reported in (2021) 2 SCC 324 has considered several

issues coming across in the claim of maintenance by wife and

has also issued the guidelines. Hon’ble Supreme Court held that

the sufficiency of the quantum has to be adjudged so that the

wife is able to maintain herself with reasonable comfort.

Sustenance does not mean and cannot be allowed to mean mere

survival. The object behind right to maintenance is to ensure that

dependent spouse is not reduce to destitution or vagrancy on

account of failure of the marriage, and not as a punishment to the

other spouse.

13.Hon’ble Supreme Court in the aforementioned judgment has also

observed that the amount of maintenance is to be awarded

considering the financial capacity of the husband, his actual

income, reasonable expenses for his own maintenance and

dependent family members whom he is obliged to maintain under

the law, liabilities, if any and thereafter to arrive at appropriate

quantum of maintenance to be paid. It is also observed that the

Court must have due regard to the standard of living of husband 2024:CGHC:13105

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as well as spiraling inflation and high cost of living and observed

thus:

77. The objective of granting interim/permanent

alimony is to ensure that the dependent spouse

is not reduced to destitution or vagrancy on

account of the failure of the marriage, and not

as a punishment to the other spouse. There is

no straitjacket formula for fixing the quantum of

maintenance to be awarded.

“78. The factors which would weigh with the

court inter alia are the status of the parties;

reasonable needs of the wife and dependent

children; whether the applicant is educated and

professionally qualified; whether the applicant

has any independent source of income; whether

the income is sufficient to enable her to maintain

the same standard of living as she was

accustomed to in her matrimonial home;

whether the applicant was employed prior to her

marriage; whether she was working during the

subsistence of the marriage; whether the wife

was required to sacrifice her employment

opportunities for nurturing the family, child

rearing, and looking after adult members of the

family; reasonable costs of litigation for a non-

working wife. [ Refer to Jasbir Kaur Sehgal v.

District Judge, Dehradun, (1997) 7 SCC 7;

Refer to Vinny Parmvir Parmar v. Parmvir

Parmar, (2011) 13 SCC 112 : (2012) 3 SCC

(Civ) 290]

79. In Manish Jain v. Akanksha Jain [Manish

Jain v. Akanksha Jain, (2017) 15 SCC 801 :

(2018) 2 SCC (Civ) 712] this Court held that the

financial position of the parents of the applicant

wife, would not be material while determining

the quantum of maintenance. An order of

interim maintenance is conditional on the

circumstance that the wife or husband who

makes a claim has no independent income,

sufficient for her or his support. It is no answer

to a claim of maintenance that the wife is

educated and could support herself. The court 2024:CGHC:13105

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must take into consideration the status of the

parties and the capacity of the spouse to pay for

her or his support. Maintenance is dependent

upon factual situations; the court should mould

the claim for maintenance based on various

factors brought before it.

81. A careful and just balance must be drawn

between all relevant factors. The test for

determination of maintenance in matrimonial

disputes depends on the financial status of the

respondent, and the standard of living that the

applicant was accustomed to in her matrimonial

home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC

316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC

(Cri) 356] The maintenance amount awarded

must be reasonable and realistic, and avoid

either of the two extremes i.e. maintenance

awarded to the wife should neither be so

extravagant which becomes oppressive and

unbearable for the respondent, nor should it be

so meagre that it drives the wife to penury. The

sufficiency of the quantum has to be adjudged

so that the wife is” able to maintain herself with

reasonable comfort.”

14.Hon’ble Supreme Court in the case of Kalyan Dey Chowdhury

Vs. Rita Dey Chowdhury has observed thus:

“16. …. Following Dr. Kulbhushan Kumar vs.

Raj Kumari and Anr. (1970) 3 SCC 129, in this

case, it was held that 25% of the husband’s net

salary would be just and proper to be awarded

as maintenance to the respondent-wife.

……….”

15.Reverting back to the facts of the case as discussed above, the

parents of non-applicant submitted an application under Section

125 of Cr.P.C. in the year 2021 i.e. after five years of the filing of

application by applicant and immediately thereafter non-applicant 2024:CGHC:13105

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entered into settlement and under compromise before the Lok

Adalat, agreed to pay Rs. 15,000/- per month. Even after making

an observation by this Court and granting time to learned counsel

for non-applicant, has not submitted application under Section

125 of Cr.P.C. submitted by parents of non-applicant nor has

placed any document to show that non-applicant is regularly

paying monthly maintenance to his parents. It shows that entire

exercise of application seeking maintenance by parents is not

bona fide but with ulterior view. Even if non-applicant being son,

husband and father has to pay the amount of maintenance, then

the balance is to be made for making payment which it appears

to the Court that non-applicant has purposefully not disclosed the

pendency of the other proceeding of maintenance filed by

applicant at the time of entering into compromise with his

parents. In view of income of the non-applicant to the tune of Rs.

39,000/- per month, I find that amount of maintenance awarded

to applicants is meager which needs to be cured by enhancing

the amount of maintenance to applicant wife and child of non-

applicant.

16.Considering the observation made by Hon’ble Supreme Court in

the case of Rajnesh (Supra) and the guidelines issued, I am of

the view that applicant No. 1 being wife of non-applicant, in view

of rate of inflation and needs of applicants for residence, food,

clothing and medical, an amount of Rs. 6,000/- to applicant No. 1

and Rs. 3,000/- to applicant No. 2 aged about 1½ years, would 2024:CGHC:13105

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be reasonable amount of maintenance. It is ordered accordingly.

17.For the foregoing discussions, the revision application is allowed

in part and the amount of maintenance as awarded by learned

Family Court to the tune of Rs. 4,000/- in favor of applicant No. 1

and Rs. 2,500/- in favor of applicant No. 2 is enhanced to Rs.

6,000/- to applicant No. 1 and Rs. 3,000/- to applicant No. 2.

Applicants would be entitled for amount of maintenance from the

date of application. The amount of maintenance paid by non-

applicant is liable to be adjusted. The arrears of amount shall be

paid by the non-applicant in installments of Rs.2000/- per month

in addition to the monthly maintenance amount as ordered by this

Court, till the payment of entire arrears of the maintenance. Other

conditions as mentioned in the impugned order of learned Family

Court shall remain intact.

Sd/- Sd/-

(Parth Prateem Sahu)

Shayna Judge 2024:CGHC:13105