Hari Har Raj Kalingarayar vs Aarti (Madras High Court)

This case starts from the petitioner being aggrieved by the order of the Ld. Family Court directing him to pay an amount of Rs. 55000 as monthly maintenance to his wife and 2 children. The Madras High Court looked into the fact that the respondent wife was drawing a salary of Rs. 35000/ month. The interim maintenance which was granted by the lower court was thus set aside by the High Court.

The primary question before the Court was whether sufficiently earning wife is entitled for a monthly maintenance as a matter of right.

After looking at the evidence on record, it was found by the Hon’ble Madras High Court that the respondent wife was not only earning well but was earning more than the husband. Thus the Madras High Court came to the conclusion that order of maintenance by the Trial Court was totally unsustainable.

Reliance was made to the case of Manokaran alias Ramamoorthy vs. M.Devaki AIR 2003 MADRAS 212 where it was held by the Madras High Court that Grant of maintenance to the wife working and earning more that her husband is improper and the same cannot be said that the wife was not having sufficient independent income.

Hence the court was not at all inclined to grant maintenance to the wife and held that provision of maintenance under section 125 CrPC was not a penal provision and has to be decided in the light of the financial capacity of the wife to maintain herself.

KN vs RG (Delhi High Court)

The Hon’ble Delhi High Court was again deciding on the issue of maintenance to a working wife in this case and came to the conclusion that the grant of maintenance will be denied on the ground that the appellant/wife was highly qualified and was working in a reputed MNC with a good salary.

Relying upon the Judgment of Rupali Gupta vs. Rajat Gupta, 234 (2016) DLT 693 the court declined interim maintenance to a wife who was a qualified Chartered Accountant and was in profession since 2003. Also in the case of Damanreet Kaur vs. Indermeet Juneja (2013) 1 JCC 306, Hon’ble Delhi High Court upheld the order of the trial court where the wife declined maintenance under the domestic Violence Act on the ground that she was well qualified and had capacity to work and had been actually working in the past.

The wife in this case was earning sufficient enough to maintain herself and give herself the required comforts of life and was also enjoying the same luxuries of life which she was enjoying while being married. The court was of the opinion that when a spouse is qualified and has the capacity to earn and maintain herself, then in that case maintenance cannot be granted.

The court thus came to the conclusion that as the husband and wife were both earning and had a good salary, merely because there is some salary difference among them, it cannot be a reason for seeking maintenance by the wife.

Biswajit Murmu & Anr vs The State of West Bengal (Calcutta High Court)

In this case maintenance was denied to wife as both the husband as well as wife were working as teachers in Government School and the wife was drawing a salary of Rs.22,358 per month. The Calcutta High Court came to the conclusion that seeking maintenance in such a case was an abuse of process of court.

Facts:

Wife filed belated 498a complainant after 3 years of separation.

The police were disturbing the parents they approached Hon’ble High Court and High court had directed that the police must do preliminary enquiry and refer the matter to the family court in case there is matrimonial dispute.

But instead of doing that the police registered the FIR and taken statements of interested witnesses in a single day.

Grounds of quashing

No explanation of delay in filing FIR

No specific allegations in FIR

The police acted malafidely.

There is a lot of trouble which is faced by the NRI people that they amicably take divorce and everything just get ended or may be a divorce on merit in foreign country and wife has to come back to India.

This forceful exodus give rise to false cases in India.

In one such case by Karnataka High Court titled as

1. Husband has taken divorce in the USA and wife dependent visa was cancelled she has to come back to India.
2. When she came back to India she lodged false 498a case.
3. Husband challenged and filed Quashing Petition in Karnataka High Court.
4. The Karnataka High Court Quashed the FIR on below mentioned ground.

Grounds

reading of the complaint in general as contended by the learnt counsel for the petitioners, it could be gathered that it appears to be a case of normal wear and Tear as is experience in any marital life. Apparently even as per the complainant no life threatening or any injury.

No allegations of dowry demand.

lastly as contended by the learnt counsel for the petitioner the instant complaint is nothing but a counterblast to the divorce case instituted by third petitioner before the superior family court at Los Angels. It is a matter of Record that respondent had been served during her stay in the US at her aunt place, who immediately on arrival to India has proceeded to lodge a police complaint and certainly it could be termed as nothing else but counterblast.

Result

Entire FIR was quashed

Judgement

Vimala Sharma Vs. State of Karnataka

Even if you get successful in divorce case on merits there is always when the wife is not working the court can grant a permanent alimony to the tune of 10 lakh-15 lakhs or may be more in a divorce case at the time of passing of the decree.

The ambit of alimony comes under the section 25 of The HMA.

The important point to keep in mind is to first analyse the order.

Whether the court has applied its mind while fixing the alimony.

The quantum of alimony must be as per the the financial status of the husband and proper explanation must be given by the court before fixing permanent alimony to the wife.

The problem with such an order will be Husband even if he wins the case goes bankrupt.

Therefore you must first analyse the order

In the Judgement of Jalendra Padhiary Vs. pragati chhotray

16. In our view, mere perusal of the order of the Family Court and the High Court quoted supra,
    would go to show that both the Courts failed to apply their judicial mind to the factual and legal
    controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both the
    Courts did not even mention the factual narration of the case set up by the parties on the question of
    award of permanent alimony and without there being any discussion, appreciation, reasoning and
    categorical findings on the material issues such as, financial earning capacity of husband to pay the
    alimony and also the financial earning capacity of wife, a direction to pay Rs.15,00,000/- by way of
    permanent alimony to the wife was given. In our opinion, such direction is wholly unsustainable in
    law.

The Hon’ble Supreme court in this judgement of Bhushan Kumar has reduced the maintenance on behalf of husband to 50% The husband was earning around Rs. 34000/-

He argued that only Rs. 9000/- is left for him and trial court has put up maintenance of Rs. 10000/-

The Hon’ble Supreme court reduced the maintenance to Rs. 5000/- citing husband has home loan emi to pay.

Article on Section 25(2) of The Protection of Women from Domestic Violence Act, 2005

Section 25(2) of The Protection of Women from Domestic Violence Act, 2005 provides for alteration, modification or revocation of maintenance if there is a change in circumstances so warrant. Section 25(2) can be used if you are ordered to pay maintenance under the Domestic Violence Act.

The Section states:

“If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”

This means that if there is a change of circumstances of the respondent, like you have lost your job, your income has been reduced, if you are a businessman you have faced huge losses due to exceptional situations like the most recent Covid-19 and you are unable to pay the pre-decided amount of maintenance, you can file an application in the concerned court for modification/ reduction or cancellation of maintenance.

The parties may move the application in the Apex court for alteration, modification or cancellation of the order passed by the lower court. The parties must have relevant grounds and evidence to take favourable orders under Section 25(2) of The DV Act i.e., to alter, modify and revoke the previous order of the lower court.

In K. Shiva kumar vs. K. Parvathi passed by High court of Karnataka in 2014, where the Hon’ble court gave directions to the Trial court to reconsider the application under Section 125 of CrPC and restore the matter under the Trial court.

There are several other judgments of the High court in which the Hon’ble High Court gave directions to the trial court to reconsider the facts and evidences and alter, modify and revoke the past order.

In Kamlesh Kumar Tiwari vs. Kamini Tiwari the application of petitioner seeking clarification got rejected by the Supreme court as it was evident from the memo of appeal of the first round of litigation and the order of appellate court, the petitioner has specifically taken a plea of ouster from residence and said plea was considered by the appellate court and rejected. Therefore, there are no grounds to review the petition so the petition has been dismissed.   

There are several other judgments as well which has been dismissed by the courts due to lack of relevant evidence from the side of the parties. For example Nisha Anna Saji vs. Anil Thomas, Amalraj Petitioner vs. Kanikkai Meri, etc.

The Bail is the discretionary relief and there is no prediction whether a bail is to be given or not.

With so much of un predictability there comes something from the Judge side.

Now in 498a bail case sometimes judge may ask you to settle the case and may ask for an offer from your end.

Now the issue is some clients may get offended as they do not wish to settle the matter so easily or does not wish to give anything to the wife side.

They don’t understand that the Judge is giving you a favor if he is offering this to you or even asking.

You have to understand as to why he is asking you the same.

He could have simply dismissed the bail application

Then you will run around for higher courts or face arrest.

At the stage of bail if judge is offering you this then you should not refuse and give some reasonable offer to settle the dispute.

There may be chances that the judge may ask you to deposit some amount or give wife maintenance, again it is a favor to you.

If you completely refuse then the judge may dismiss your application…

I see many number of clients who have evidence with them and waiting for the Defence evidence stage to use it. The problem with this is sometimes the best possible evidence cannot be produced by the husband to prove his innocence.

Now if the husband is saying that his relatives where not present at the time of the incidence as purported to be alleged in the investigation.

The husband can show CDR or through mobile location. Now if police is not collecting the details and doing one sided investigation then the only recourse husband has is to approach the court.

Obviously if police calls in pursuant to 41A notice the husband can circulate a letter to IO to summon the records and even after that the IO do not summon.

The husband can move concerned magistrate court with and application of monitoring investigation and section 91 application to preserve CDR or CCTV as the case may be.

If the magistrate court orders the the same can be record of chargesheet a glaring proof of your/family member innocence.

The same can be used to discharge or quashing also..at the time of filing chargesheet.

Now if the police do not do the needful and does not make the records as part of chargesheet.

The husband can demand after filing of the charge sheet under section 173(8) for further investigation.

 There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-

way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.

When there are no evidence to show that the wife has deserted you with reasonable cause court can deny maintenance in such case

 In Bheekha Ram v. Goma Devi and Ors., it was held by the Rajasthan HC that, there is no maintenance to the deserting wife. Right to maintenance stems performance of marital duty. If there is no evidence of ill-treatment by husband and wife has no just cause to live separately, she is not entitled to the maintenance.

In Kalidas v. Parwatibai, it was held that if the wife has left the husband without any reasonable cause and left her husband against his wish, she is not entitled to the benefit of maintenance under section 125 of Cr.PC.

In Krishnabai v. Punamchand, the wife refused to live with her husband and deserted her on the ground that her father-in-law misbehaved with her. This was regarded to be unreasonable by the court.

If the husband is living separately from his parents and his wife residing with his parents at her matrimonial home and husband wants wife to leave his parents’ house and parents doing cruelty against the wife. Will husband get bail in that condition?

When husband is living separately from his wife and his parents and wife is residing at her matrimonial home with her in laws and the husband and his parents wants that the wife must leave her matrimonial home as the husband does not want to maintain the matrimonial relationship with his wife. The in laws do cruelty against the wife so that she will leave their house as the wife has put the matrimonial cases against the husband and in laws as she was facing cruelty from her husband and in laws as she is not meeting their growing dowry demands. If the in laws did physical assault and cruelty with her daughter in law and husband is residing separately from his parents and his wife, then the husband will not be eligible to grant the anticipatory bail from the court.

A per the latest judgement of the Hon’ble Supreme Court if husband is residing separately from his parents and wife, he will be equally liable for woman’s injuries in matrimonial home, says Supreme Court.

Earlier, the Punjab and Haryana High Court had refused anticipatory bail to the said petitioner and had extracted the woman’s complaint, which read, “On June 12, 2020 at about 9 pm, the petitioner (husband) and his father, armed with a cricket bat, gave the complainant merciless beatings in which the petitioner’s mother also participated. The petitioner attempted to strangulate the complainant and his father put a pillow on her face with an intention to kill her, after giving her merciless beatings…..”

In this case, as the husband’s counsel said the Apex Court that it was the husband’s father who had used the bat to assault her, the CJI-led bench said, “It does not matter whether it was you (husband) or your father who allegedly used the bat to assault her. When injuries are inflicted on a woman in a matrimonial home the primary liability is on the husband.”

Below is the link of Supreme Court notification: