Mohan Swaroop Chauhan v. Mohini

1 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) 07/08/2015 Shri Prashant Sharma, Advocate for petitioner. Shri Vivek Khedkar, Advocate for respondent. By this Writ Petition under Article 227 of the Constitution of India challenge is made to the order dated 4/3/2014 passed by the Additional Principal Judge, Family Court, Gwalior, dismissing the application dated 4/9/2013 for adjustment of the amount deposited in the Family Court, Jhansi under Section 125 of Cr.P.C. at the rate of Rs.12,000/- per month in favour of respondent/applicant and two children against the decreetal amount of permanent alimony under Section 25 of the Hindu Marriage Act (hereinafter referred to as 'the Act') at the rate of Rs.10,000/- per month, as ordered in the divorce decree. 2- Facts relevant and necessary for disposal of the writ petition are in narrow compass. The Additional Principal Judge, Family Court, Gwalior, vide judgment and decree dated 10/9/2010 in case No.25A/2010 HMA awarded decree of divorce under Section 13 of the Act to petitioner-Mohan Swaroop Chauhan (husband) and granted permanent alimony to respondent-Smt. Mohini Chauhan (wife) at the rate of Rs.10,000/- per month.

2 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) First Appeal No.251/2010 (Mohan Swaroop Chauhan vs. Smt. Mohini Chauhan) was preferred by the petitioner/husband against grant of permanent alimony under Section 25 of the Act and First Appeal No.267/2010 (Smt. Mohini Chauhan vs. Mohan Swaroop Chauhan) was preferred by respondent/wife against the decree of divorce under Section 13 of the Act. Both appeals were heard analogously and decided vide judgment and decree dated 9/4/2013 by the Division Bench of this Court. Wife-Smt. Mohini Chauhan after arguing for a while before the Division Bench expressed her wish not to challenge the decree of divorce. Accordingly, First Appeal No.267/2010 preferred by Smt. Mohini Chauhan was dismissed as not pressed. The Division Bench while addressing upon the challenge made to the judgment and decree dated 10/9/2010 on the question of grant of permanent alimony at the rate of Rs.10,000/- per month under Section 25 of the Act has dealt with in detail various relevant facts for reaching the conclusions that:-

i. the respondent-wife Smt. Mohini Chauhan has any source of income (para 12 of the judgment);

3 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan)

ii. income of the petitioner/husband Mohan Swaroop Chauhan is found to be Rs.35,000/- per month (para 19 of the judgment);

iii. maintenance amount of Rs.12,000/- per month granted by the Family Court, Jhansi, under Section

125 Cr.P.C. is for the respondent/wife and her two daughters residing with her: it is relevant to mention that the order passed by the Family Court, Jhansi has also been confirmed by the High Court of Allahabad vide order dated 3/4/2012 dismissing the Criminal Revision No.4854/2009;

iv. it has, therefore, been held that respondent/wife's share was Rs.4,000/- per month (para 20 of the judgment);

v. the Division Bench though by referring to the judgment cited by learned counsel for the petitioner viz.Sudeep Chaudhary Vs. Radha Chaudhary, AIR 1999 SC 536 held that amount under Section 125 Cr.P.C. can be adjusted against the amount awarded in the matrimonial proceedings, however, in the facts and circumstances of the case has held that there cannot be a thumb rule that in each and every

4 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) case such adjustment has to be granted;

vi. the Division Bench further elaborated the concept, object and purpose of grant of permanent alimony drawing guidance by the judgment of Hon'ble Supreme Court in the case of U. Sree Vs. U. Srinivas, (2013) 2 SCC 114 and held that there cannot be any arithmetical formula of mathematical exactitude and it depends on various facts viz. social status, family background, financial capacity of husband and such other relevant facts; and,

Vii. thereafter, in para 22 the Division Bench has concluded its findings as under:-

22. As noticed earlier, the appellant- husband is working as accountant in a private company, he owns a car as well as house, he advanced loan to his mother-in- law and brother-in-law, his daughters have passed MCA and BCA from a college, he himself agreed to pay Rs.10,000/- per month in the proceeding before Parivar Paramarsh Kendra Gwalior on 16-7-2008 vide Ex.D.3, income of the appellant-husband, prevailing

5 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) prices of the essential commodities as well as the amount awarded under Section 125 of Cr.P.C. to the wife, the amount of Rs.10,000/- awarded by learned Family Court as permanent alimony appears to be just and proper and we see no reason to hold that it is excessive and unreasonable.

A bare perusal whereof unequivocally suggests that the Division Bench has found no fault with the grant of permanent alimony at the rate of Rs.10,000/- per month by the Family Court in addition to maintenance under Section 125 Cr.P.C. granted by the Family Court, Jhansi. Resultantly, the appeal filed by petitioner/husband bearing FA No.251/2010 was dismissed. The Family Court, Gwalior, in the light of the judgment of the Division Bench particularly paras 22 and

23 has dismissed the application for adjustment filed on 4/9/2013 before it. 3- Learned counsel for the petitioner/husband while taking exception to the order impugned contended that there is apparent jurisdictional error, as the court below refused to adjust the amount deposited in the Family Court, Jhansi under Section 125 Cr.P.C. at the rate of

6 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) Rs.12,000/- per month in favour of respondent/wife and two children against the decreetal amount of permanent alimony under Section 25 of the Act at the rate of Rs.10,000/- per month, as ordered in the divorce decree, contrary to the judgment of Hon'ble Supreme Court in Sudeep Chaudhary (supra) and the observations of the Division Bench in para 20, where adjustability of the amount is found to be permissible. Learned counsel while elaborating on aforesaid submission further tried to submit that one of the daughters since is married and other daughter is earning, therefore, the respondent/wife is not entitled to receive the amount of maintenance granted by the Family Court, Jhansi. Learned counsel, therefore, contends that the Additional Principal Judge, Family Court, Gwalior, having failed to exercise its jurisdiction of adjustment of the amount referred above, under the circumstances, has in fact and in effect committed serious error of law and facts warranting interference under Article 227 of the Constitution of India. 4- Before adverting to the submissions advanced by learned counsel for the parties and to the question posed, it is considered apposite to reiterate the scope and application of Section 125 Cr.P.C. and concept of

7 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) maintenance as laid down by the Hon'ble Apex Court in catena of cases. The provisions as contained in Section

125 Cr.P.C. is held to be a measure of social justice falling within the constitutional sweep of Article 15 (3) and re-enforced by Article 39 of the Constitution of India to protect the weaker sections of the society, like women and children. In the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, AIR 1978 SC 1807 it has been held to be secular safeguard irrespective of the personal laws of the parties: Fuzlunbi

v. K. Khader Vali, AIR 1980 SC 1730. The object is to compel a man to perform the moral obligation which he owes to society in respect of his wife, children and parents so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The jurisdiction of the Magistrate is held to be preventive and not remedial and in no case punitive. The maintenance or interim maintenance granted under Section 125 Cr.P.C. is limited in its application and is subject to the orders passed by the Court under Section

127 Cr.P.C., which provides that such orders are subject to any final adjudication by the Civil Court regarding the

8 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) status and civil rights: Bhagwan Dutt v. Kamala Devi, AIR 1975 SC 83 referred to. Having social purpose Section 125 Cr.P.C. and sister clauses in their interpretation must receive a compassionate expanse of the sense that the words permit. The concept of grant of maintenance basically is that there is a deliberate avoidance, neglect or refusal to maintain the claimant; the claimant is unable to maintain himself or herself; and the other party has sufficient means to pay the maintenance. The Court further is required to consider the capacity and ability of the other party to maintain the claimant. The overall assessment of the fact, surrounding circumstances and totality of the matter are required to be addressed for preparation of foundational matrix to award the claim of maintenance. The word 'maintenance' is not to be narrowly interpreted. It means most reasonable requirement for the existence of a person to live separate. It has to be found out what is the requirement of the claimant to maintain standard of living, which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The earnings of the husband and his commitments are also relevant.

9 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) An order of maintenance under Section 125 Cr.P.C. against the person shall continue to operate until vacated or altered in terms of the provisions as contemplated under Section 125 (4) and (5) or Section 127 of the Criminal Procedure Code, as it is open to the person to initiate proceedings for its variation or cancellation under the circumstances enumerated in the aforesaid provision, but until the original order for maintenance is modified or cancelled by the higher Court or is varied or vacated in terms of Section 125 (4) and (5) or Section 127 Cr.P.C., its validity survives. It is enforceable and no plea of either of cohabitation or compromise can hold good as a valid defence to the order passed: Bhupinder Singh vs. Daljit Kaur, AIR 1979 SC 442 referred to. The Hon'ble Apex Court while addressing upon the object, scope and application of Section 25 of the Act reiterated the law in the case of Vinny Parmvir Parmar vs. Parmvir Parmar, (2011) 13 SCC 112 referring to relevant extracts of the authoritative pronouncement in the cases of Bhagwan Dutt (supra) (para 19) and Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316 (para 8), which are reproduced as under:-

19. The object of those provisions being to

10 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.

8. In an illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. 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

11 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83 it was observed that the wife should be in a position to maintain a 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 CrPC.

The aforesaid principles have been followed in the case of U. Sree (supra). 5- The Division Bench though in concluding lines of para 20 has held that the amount awarded under Section

125 Cr.P.C. can be adjusted against the amount awarded in matrimonial proceedings, but further observed that there is nothing to suggest that a thumb rule adjustment of the amount is to be granted in each and every case. Further, in the same para it has been found that the amount of Rs.12,000/- granted by the Family Court, Jhansi under Section 125 Cr.P.C. was to the respondent/wife and two daughters and held that only Rs.4,000/- has fallen to the share of respondent/wife. Under the circumstances, in para 22 the Division Bench

12 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) has concluded that the amount awarded under Section

125 Cr.P.C. to the wife and the amount of Rs.10,000/- awarded by the Family Court as permanent alimony appears to be just and proper............we see no reason to hold that it is excessive and unreasonable. However, learned counsel for the petitioner/husband contends that in the light of the judgment of the Hon'ble Supreme Court in the case of Sudeep Chaudhary (supra) the Family Court at Gwalior was obliged to consider the prayer for adjustment even though the order of the Division Bench holds good and final between the parties. The aforesaid order of the Division Bench, as cited above, is after considering the all relevant factors and entire material placed before the Court. The aforesaid contention of learned counsel for the petitioner/husband, in the opinion of this Court, cannot be countenanced for more than one reasons:

i. Adjustability of the amount of maintenance awarded under Section 125 Cr.P.C. proceedings as against the amount of maintenance as permanent alimony under Section 25 of the Act is comprehensible

13 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) proposition, but as rightly held by the Division Bench there cannot be a thumb rule of its application in absolute sense.

ii. It is not out of place to mention that facts in the context of order of the Hon'ble Supreme Court were to the effect that the respondent/wife despite service had not appeared before the Supreme Court and though the High Court was found in error having not resorted to adjustability of the amount in the facts of that case, it was further observed .......In the absence of the wife, we are, however, not inclined to go into in detail discussion of the law. Under the circumstances, in the opinion of this Court, the contentions, so advanced, are misconceived and deserve rejection. If the petitioner/husband has material in his possession to substantiate change in the circumstances,

i.e. his one daughter is married and other daughter though unmarried, but in job, he may always resort to proceedings under Section 127 Cr.P.C. before the competent Court at Jhansi and no proceeding in that

14 Writ Petition No.1835/2014 (Mohan Swarooop Chauhan vs. Smt. Mohini Chauhan) behalf shall lie before the Family Court at Gwalior. Resultantly, the impugned order does not suffer from any illegality or jurisdictional error. The Writ Petition is bereft of merits. Accordingly, dismissed. (Rohit Arya) Judge Arun*