CR No. 6060 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6060 of 2011 (O&M) Date of Decision: 3.10.2011 Ajay Gagat ...Petitioner Vs. Manisha ...Respondent BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.Sanjeev Manrai, Advocate, for the petitioner. --- A.N.Jindal, J. Trial court in the proceedings under section 24 of the Hindu Marriage Act, 1955 (herein referred as the Act), in a petition for a decree of divorce preferred by the petitioner, ordered payment of maintenance to the respondent wife at the rate of ` 4000/- per month and ` 2000/- as litigation expenses. The said order dated 20.08.2011 has been challenged by CR No. 6060 of 2011 2 way of this petition. The relationship between the parties is not disputed. It is also not in dispute that the petitioner has been working as a peon in a bank and his gross salary is Rs.12,865.31P per month. The trial court after considering the aforesaid income awarded maintenance to the tune of Rs.4000/- per month to the respondent. It has been settled time and again that wife is liable to be maintained by her husband. Counsel for the petitioner has relied upon the judgment delivered in the case of Smt.Parkash Kaur Vs. Harbhajan Dass 2003 (2) PLR 500 in order to stress that the respondent could not be granted more than 1/5th of the gross salary. Having examined the judgment, the same is not applicable to the facts of the present case. No obiter dicta was recorded by the bench but the order appears to have been recorded on the consent of the parties. In any case, no straight jacket formula can be laid down for fixing the amount of maintenance and it could be fixed keeping in view the income of the applicant as well as respondent, the dependency of the applicant, the status of the parties, the environment in which they are living, their requirements and necessities. However, safeguard which the court should take is that it should not be excessive or affect living conditions of the respondent against whom the maintenance is being awarded. Similar observations were made by the Apex Court in the case of Vinny Parmvir Parmar Vs. Parmvir Parmar 2 011 (3) RCR CR No. 6060 of 2011 3 (Civil) 900, wherein it was observed as under:- “10) In Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr. (975) 2 SCC 386, though this Court has considered the amount of maintenance payable to wife under Section 488 of the Code of Criminal Procedure, 1898, the principle laid down is applicable to the case on hand. In para 19, this Court held: “19. The object of these provisions 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 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.” 11) In Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, which also relates to maintenance claim by deserted wife under Section 125 of the Code of Criminal Procedure, 1973. The following statement in para 8 is relevant which reads as under: “…..Where the personal income of the wife is insufficient she can claim maintenance under CR No. 6060 of 2011 4 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 Bhagwan Dutt v. Kamla Devi, 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 Cr.PC.” 12) As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to CR No. 6060 of 2011 5 reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to keep in mind while determining maintenance or permanent alimony.” In the cited case, the court discussed the provisions of section 25 of the Act as well as section 125 of the Code of Criminal Procedure, both being synonymous in nature. The Delhi High Court in the case of Jayant Bhargava V. Priya Bhargava 2011 (3) RCR (Civil) 942 also entered into marathon discussions for determining the criteria for fixing the quantum of maintenance and observed that it is normal tendency among spouses not to disclose the income truthfully, therefore, the court should also enter into some guess work while taking into consideration amongst others, the following factors: “16. .............. (i) Life style of the spouse; (ii) The amount spent at the time of marriage and the CR No. 6060 of 2011 6 manner in which marriage was performed; (iii) Destination of honeymoon; (iv) Ownership of motor vehicles; (v) Household facilities; (vi) Facility of driver, cook and other help; (vii) Credit cards; (viii) Bank account details; (ix) Club Membership; (x) Amount of Insurance Premium paid; (xi) Property or properties purchased; (xii) Rental income; (xiii) Amount of rent paid; (xiv) Amount spent on travel/holiday; (xv) Locality of residence; (xvi) Number of mobile phones; (xvii) Qualification of spouse; (xviii) School(s) where the child or children are studying when parties were residing together; (xix) Amount spent on fees and other expenses incurred; (xx) Amount spent on extra-curricular activities of children when parties were residing together; (xxi) Capacity to repay loan. Hon'ble Supreme Court in a recent judgment in the case of Manoj Yadav Vs. Pushpa @ Kiran Yadav & Ors. 2011 (1) RCR CR No. 6060 of 2011 7 (Civil) 803, also observed that after the amendment to section 125 Cr.PC, which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words “not exceeding five hundred rupees in the whole”, all State amendments to Section 125 Cr.PC by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid. Since Section 24 of the Act as well as Section 125 Cr.PC do not fix the upper limit in maintenance to be granted and it has been left to the discretion of the court who after due application of mind taking into consideration the aforesaid facts, would fix reasonable, appropriate, subsistence allowance for smooth survival of the aggrieved party. Having examined the observations made by the trial court while fixing the quantum of maintenance, I observe that the maintenance awarded under section 24 of the Act is reasonable and not excessive in the given circumstance of the case. No grounds to interfere. Dismissed in limine. (A.N.Jindal) 3.10.2011 Judge rp