Sandeep Sharma ORDER
Sandeep Sharma, J.
1. By way of instant criminal revision petition filed under S. 397 CrPC, challenge has been laid to order dated 10.3.2021 passed by learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh in Cr. Revision No. 14/2017 (Annexure P-6), whereby criminal revision petition having been filed by the petitioner came to be disposed of as compromised, whereby the petitioner herein agreed to pay Rs. 10.00 Lakh to the respondent as permanent alimony and respondent also agreed to file a divorce petition in the competent Court of law within a period of three months, the petitioner herein agreed to pay Rs. 5.00 Lakh on the date of filing of divorce petition and remaining Rs. 5.00 Lakh at the time of passing of final order. Most importantly, petitioner stated before learned Court below that in case he fails to pay the aforesaid amount to the respondent, ex parte order dated 24.12.2017, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, regarding monthly maintenance allowance shall come to force.
2. Precisely, the facts of the case as emerge from the record are that the respondent filed a petition under S. 125 CrPC, (Annexure P-3) in the court of learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, Himachal Pradesh praying therein for maintenance. In the aforesaid petition, respondent claimed that she is legally wedded wife of the petitioner and their marriage was solemnized on 24.1.1978 as per Hindu rites and ceremonies at Village and Post Office Rajgarh, Tehsil Balh, District Mandi, She alleged that the petitioner after having contracted second marriage with one Pushp Lata ousted her from the matrimonial house and is not providing any maintenance to the respondent, as such, she was compelled to do a job to maintain herself and her minor children. She alleged that she has turned old and suffering from arthritis and is unable to walk as such, has resigned from her job in April, 2016 and since then she has no source of income to maintain herself. Respondent claimed that the petitioner is a retired employee of BBMB and getting Rs. 20,000/- from pension and apart from this, he is having sufficient landed property, from which his monthly income is more than Rs. 30,000/-. In the aforesaid proceedings, respondent claimed monthly maintenance to the tune of Rs. 10,000/-. In the aforesaid proceedings, petitioner despite having received notice failed to put in appearance and as such, he was proceeded ex parte vide order dated 24.12.2016 (Annexure P-4). Learned trial Court allowed the petition under S. 125 CrPC having been filed by the respondent and directed the petitioner to pay sum of Rs. 10,000/- per month from the date of institution of petition i.e. 12.4.2010.
3. Being aggrieved and dissatisfied with the aforesaid order granting maintenance passed by learned trial Court, petitioner preferred a Cr. Revision under S. 397 CrPC in the court of learned Sessions Judge, Mandi, Himachal Pradesh, which subsequently came to be disposed of vide order dated 10.3.2021 (Annexure P-6), on the basis of compromise arrived inter se parties. Perusal of order dated 10.3.2021 reveals that the petitioner herein agreed to pay Rs. 10.00 Lakh to the respondent as permanent alimony and also agreed to file a joint petition under S. 13B of the Hindu Marriage Act, with the petitioner seeking therein divorce by way of mutual consent. In those proceedings, petitioner agreed to pay a sum of Rs. 5.00 lakh to the respondent, on the day of filing of the divorce petition and remaining amount at the time of passing of final order. He also undertook before learned Sessions Judge that in case he fails to pay the aforesaid amount, order dated 24.12.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi awarding Rs. 10,000/- as maintenance shall automatically revive.
4. Interestingly, after passing of aforesaid order dated 10.3.2021, petitioner has approached this court in the instant proceedings, praying therein to set aside order dated 10.3.2021, on the ground that he was compelled/pressurized to enter into compromise as stands recorded in order dated 10.3.2021. It has been averred in the petition that the petitioner, who is senior citizen and is not keeping good health entered into compromise out of fear that in case maintenance in terms of order dated 24.12.2016 is not paid, he would be dispossessed of his property. Apart from above, order impugned in the instant proceedings, has been laid challenge on the ground that the respondent herein left the matrimonial house in 1992 without any rhyme and reason and as such, he is not liable to pay any compensation. It has been further stated in the petition that he is getting Rs. 21,000/- per month as pension and out of aforesaid sum he is compelled to pay maintenance to two wives i.e. respondent and another lady namely Pushp Lata.
5. Learned Counsel appearing for the petitioner vehemently argued that the learned Court below while awarding maintenance to the tune of Rs. 10,000/- failed to take note of the fact that monthly income of the petitioner is Rs. 21,000/- and with the same, he is required to support two families, one of respondent and another of Pushp Lata. While referring to judgment passed by Hon'ble Apex Court in Rajnesh v. Neha, MANU/SC/0833/2020 : (2021)2 SCC 324, learned Counsel appearing for the petitioner argued that 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 law, liabilities, if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid.
6. Having heard Learned Counsel appearing for the parties and perused the material available on record vis-a-vis reasoning assigned by learned Sessions Judge, while passing impugned order dated 10.3.2021 (Annexure P-6), this court finds present petition to be not maintainable. Bare perusal of aforesaid order clearly reveals that though the petitioner herein laid challenge to order dated 24.12.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi whereby he was directed to pay Rs. 10,000/- as monthly maintenance to respondent but during the pendency of the criminal revision petition, he himself entered into compromise with the respondent, whereby he agreed to pay Rs. 10.00 Lakh to the respondent as permanent alimony. Sum of Rs. 5.00 Lakh was to be paid at the time of filing of the divorce petition and remaining Rs. 5.00 Lakh at the time of passing of final order. It stands duly recorded in the impugned order that the petitioner specifically undertook before learned court below that in case he fails to pay aforesaid amount, ex parte order dated 24.12.2016 passed by learned trial Court shall revive.
7. In the case at hand, interestingly, the petitioner after having given aforesaid statement before learned Sessions Judge, failed to file divorce petition under S. 13B of the Hindu Marriage Act alongwith respondent and he never paid any amount agreed to be paid as such, ex parte order dated 24.12.2016 passed by learned trial Court rightly came to be revived.
8. Though, in the case at hand, petitioner has claimed that he was compelled/pressurized to enter into compromise but such plea is not substantiated by any material rather, order dated 10.3.2021 clearly reveals that during the pendency of the criminal revision filed by the petitioner, parties of their own volition entered into compromise, whereby petitioner agreed to file petition under S. 13B of the Hindu Marriage Act in the competent Court of law, seeking therein divorce by way of mutual consent. It has been stated by the petitioner in the petition that since he was under threat of execution of order dated 24.12.2016 passed by learned trial Court, he entered into compromise. Aforesaid admission of the petitioner itself establishes the factum with regard to compromise entered into by the petitioner of his own will and volition with the respondent. On account of violation of aforesaid undertaking given by the petitioner in criminal revision petition filed by him, order dated 24.12.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi has revived and as such, petitioner cannot escape liability to pay the maintenance to the respondent, who is his legally wedded wife.
9. Otherwise also, there is no dispute that the respondent is legally wedded wife of the petitioner and he during subsistence of marriage with the respondent, contracted second marriage with Pushp Lata. Factum with regard to maltreatment and cruelty meted to the respondent stands duly established on record with the admission made by petitioner that he has contracted second marriage with Pushp Lata, who is also claiming maintenance from him. Since the petitioner contracted second marriage, it cannot be accepted that the respondent of her own volition left the matrimonial house, rather, under compelling circumstances, she was forced to leave the matrimonial house.
10. Though, this court finds no illegality and infirmity in the order dated 24.12.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, awarding monthly maintenance to the tune of Rs. 10,000/- to the respondent, but having taken note of the fact that monthly income of the petitioner is Rs. 21,000/-, amount of maintenance awarded by learned trial Court appears to be on higher side.
11. Hon'ble Apex Court in Rajnesh supra, has categorically held that the financial situation and liabilities of the non-applicant and higher obligations of respondent are required to be taken into consideration, while awarding maintenance. No doubt, the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. Since in the case at hand, there is no dispute that the monthly income of the petitioner is Rs. 21,000/- and he has two families to support, by no stretch of imagination, order granting maintenance to the tune of Rs. 10,000/- can be held to be justifiable. Hon'ble Apex Court in Rajnesh supra, has held as under:
"80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
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. 36 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.
82. Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration: (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
83. Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
Where wife is earning some income
90. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.
90.1. In Shailja & Anr. V. Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
90.2. In Sunita Kachwaha & Ors. V. Anil Kachwaha 42 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v. Shila Rani Chander v. Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan 45 cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife."
12. In view of the detailed discussion made herein above, the petition is disposed of by upholding the order dated 10.3.2021 passed by learned Sessions Judge, Mandi, however, order dated 24.12.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, Himachal Pradesh (Annexure P-4) in CR.M.A. No. 116-IV/2016 is modified to the extent that instead of Rs. 10,000/- the petitioner shall be liable to pay monthly maintenance to the respondent at the rate of Rs. 7,000/- per month from the date of institution of the petition under S. 125 CrPC.
13. The petition stands disposed of in afore terms. Pending applications, if any, stand disposed of.
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