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2022 Supreme(J&K) 698
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
VINOD CHATTERJI KOUL, J.
Shashi Paul Singh – Appellant
Versus
Gurmeet Kour & Anr. – Respondents
CRM(M) No. 241 of 2021 & CrlM No. 885 of 2021
Decided on : 17-11-2022
Advocate Appeared:
For the Appellant : Inayat Jamal
For the Respondent: Mir Javed
IMPORTANT POINT
The right to seek maintenance under Section 488 Cr.P.C. is a statutory right, and a husband cannot evade his obligation to maintain his wife and children based on claims of insufficient income if he has the capacity to earn.
Headnote:
MAINTENANCE - Wife and Child Maintenance - Section 488 Cr.P.C. - The court discussed Section 488 of the Jammu and Kashmir Code of Criminal Procedure, which mandates maintenance for neglected wives and children. The court emphasized that the purpose of maintenance is to prevent destitution and vagrancy, and that the husband has a statutory duty to provide for his wife and children. The court interpreted the provisions to mean that a husband cannot evade his obligation based on claims of insufficient income if he has the capacity to earn. The court upheld the maintenance orders, finding them justified based on the husband's income and the needs of the wife and child.
Fact of the Case:
The petitioner challenged the orders of the Trial Court and Revisional Court regarding maintenance payments to his wife and child, arguing that the maintenance amount was excessive and that his wife had left him without cause. The Trial Court had found that the petitioner had sufficient income and had neglected to maintain his family, awarding maintenance amounts of Rs. 2500/- and Rs. 3000/- respectively, which were later enhanced by the Revisional Court to Rs. 8000/- and Rs. 5000/-.
Finding of the Court:
The court found that the Trial Court had properly appreciated the evidence and concluded that the petitioner had sufficient means to support his wife and child. The Revisional Court's enhancement of the maintenance amounts was justified based on the petitioner's income and the needs of the respondents. The court noted that the petitioner had refused to take his wife back, which justified her separate living situation.
Issues: Whether the maintenance amounts awarded were excessive and whether the petitioner had a valid reason for refusing to maintain his wife and child.
Ratio Decidendi: The court reiterated that the statutory duty to maintain one's wife and children cannot be evaded based on claims of insufficient income if the individual has the capacity to earn. The court emphasized that the purpose of maintenance laws is to prevent destitution and ensure that those unable to support themselves receive necessary financial assistance.
Final Decision: The petition was dismissed, upholding the orders of the Trial Court and Revisional Court regarding maintenance payments.
JUDGMENT :
VINOD CHATTERJI KOUL, J.
1. This petition filed under Section 482 Cr.PC challenges the order dated 08.03.2021, passed by the learned Principal Sessions Judge, Budgam (for short “Revisional Court”) upholding the order dated 31.01.2020 passed by the court of Chief Judicial Magistrate, Budgam (for short “Trial Court”) and rejecting the revision petition.
2. The petitioner has thus challenged both the orders in this petition. The grounds taken up for challenge of the orders are:
“(i) That impugned order has been passed arbitrarily and mechanically fixing quantum of maintenance at an exorbitant rate without taking into consideration the liabilities of the petitioner and the total payable salary of the petitioner, which after making all necessary deductions including deductions towards loan raised by him, is around Rs. 12000/- only as on date.
(ii) That impugned order has been passed in contravention to the law laid down by the Apex Court stating that the object of the provisions of maintenance being to 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 object of maintenance proceedings is not to punish a person for his past neglect.
(iii) That rationale behind grant of maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constrains of a dependant spouse hamper their capacity to be effectively represented before the Court but in the instant case the respondents were already receiving the maintenance still the impugned order was made applicable from the date of application on this count also the impugned order deserves to be set aside.
(iv) That at the time of institution of petition under 488 J&K Cr.PC, petitioner was drawing a net salary of around Rs. 11,264/- only, after making all the deductions and making the order, enhancing the amount of maintenance at an exorbitant rate, applicable from the date of application is arbitrary and in fact punitive to the petitioner. On this count also the impugned order deserves to be set aside. A copy of Salary slip of the petitioner for the month of March, 2014 is annexed herewith this petition and is marked as annexure VII.
(v) That the petitioner has made a bona fide offer to the Respondent to resume the matrimonial ties and the respondent, without any plausible ground, is not inclined to resume the matrimonial ties with the petitioner.
(vi) That respondent no. 01 is living separately on her own accord without showing any predilections to resume the matrimonial ties with the petitioner. In the matter, learned trial judge, CJM, Budgam has observed at page no. 23 of his order/judgment dated 31.01.2020. as follows:
Line 8-13”...However, during evidence of the applicant it has come that applicant no. 01 is ready to join the company of non applicant subject to fulfillment of certain conditions which have been followed by the non applicant as per the evidence on the file and as per the evidence of presidents of various committees that non applicant in their presence apologized for the past...” Petitioner has made bona fide offer to resume matrimonial ties to the respondent, the impugned order is liable to be set aside.”
3. Briefly stating, the facts are that there are no dispute with regard to the fact that petitioner and respondent no.1, after marriage, have been living separately due to differences. The respondent no.1, being the wife and respondent no.2 being daughter of the petitioner while residing separately, approached the Trial court for maintenance under Section 488 Cr.PC. The said petition was filed before the Trial court on 05.11.2013, which after long spell more than six years, was decided 31.01.2020. The Trial court after having given
