Trial Court should Consider Responsibility of Husband towards Aged Parents also while deciding Maintenance for Wife!

(A) A Man that is a Husband is a Son also. 

A Man that is married and has wife, children; has Father and Mother also.

Morally a Man that is a husband is under obligation to maintain wife and children.
Morally man that is a son has a pious duty and is under obligation to maintain aged parents.

Legally wife can approach court against husband that is neglecting to maintain her.
Legally dependent parents can also approach court against son that is neglecting to maintain them.
Legally husband is liable to maintain parents also, under the same law that lays down statutory objections on husband to maintain wife and children.
The husband has to maintain himself also.

The man that is a husband and a son also may have fixed income out of which he has to maintain his wife, children, aged parents, himself and fulfil his other obligations.
And the income may not be sufficient and may be even meagre.

While awarding maintenance for wife and children trial court should consider the statutory obligation of man towards his aged parents also.
The very same Section 125 of Criminal Procedure Code (CrPC) that binds husband to maintain his wife and children fastens the statutory obligation upon husband to maintain his Parents, also. 
The court should not ignore this important aspect while deciding the maintenance to wife and children.

In its essence and spirit High Court cared for needs of aged parents dependant on son, legal obligation of son, i.e. husband facing litigation for award of maintenance to wife and remind, reset, and reiterate the course for trial courts, in similar matters. 

The decision by Justice RMT.TEEKAA RAMAN, Madras High Court, is laudable.

(B) The trial are not to treat the husband like "Armless Soldier" and pass the maintenance award in on Mechanical manner. 

While, arriving at quantum of maintenance for the wife and children (in maintenance proceedings), it is stated that Family Court (Judicial Magistrate Court dealing with the issue) as to take the entirety of the circumstances of the financial liability of the husband. Admittedly, while arriving at the maintenance award for wife and children, the attitude of the trial Court especially, the Family Court awarding amount more than 2/3rd proved income is deprecated. 

Furthermore, it is to be stated that the fact that a husband who is a son to his father is liable to maintain the aged parents (in many case senior citizens) cannot be brushed aside lightly.
Besides, the moral obligation, there is a statutory obligation cast upon the every son to maintain the parents which is also falls under Section 125 of the CrPC and
therefore, the trial Court ought to have weighed the entire circumstances as
placed before the Court and to have reasonable assessment financial burden
on the shoulder of the husband. 

Thus, while awarding the maintenance in favour of wife and children the Court should take into consideration his responsibility to look after the aged old parents, since the husband has been fastened with statutory objections to look after and maintain not only his wife but also his parents under the very same Section 125 of CrPC.

(C)  Literally Deprecated: express disapproval of.

Deprecate; to not approve of something or say that you do not approve of something
(Definition of “deprecate” from the Cambridge Advanced Learner's Dictionary & Thesaurus © Cambridge University Press)
http://dictionary.cambridge.org/dictionary/english/deprecate

Deprecation: admonition, condemnation, criticism, disapproval, reluctance.

Burton's Legal Thesaurus
http://legal-dictionary.thefreedictionary.com/deprecation

(D) Central Government Act
Section 125 in The Code Of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12-1978 ).

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

(E) The Apex Court; The Supreme Court of India, laid the guiding principles for the Family Courts to arrive at the quantum of maintenance to be awarded in the maintenance proceedings.

This is wife's appeal against the judgment dated October 14, 1996 of the High Court of Judicature at Allahabad. She is aggrieved by the impugned judgment under which she was awarded maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 (for short `the Act') at the rate of Rs. 1500/- per month. 

Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision.

She is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. 
At the same time, the amount so fixed cannot be excessive or extortionate.

The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be conduct of the parties in the proceedings; averments made in the application and the reply there to;  the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. 

There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case.

Supreme Court of India
Smt. Jasbir Kaur Sehgal vs The District Judge Dehradun & Ors
Author: D Wadhwa
Bench: Sujata V. Manohar, D. P. Wadhwa
https://indiankanoon.org/doc/796258/

(F)  MR.JUSTICE RMT.TEEKAA RAMAN pointed out in another of his illustrated judgment:

15. In the matter of maintenance claim filed under Section 125 of Cr.P.C., the primary onus is upon the wife to show the income of the husband, but onus is also equally placed on the husband to produce reasonable evidence, which is in his possession to bring before the Court the true and correct income of his earning and if the statements of both husband and wife about the income are not believable, then the Court has to apply some guess work and work out to arrive at a reasonable income that could be drawn by the husband so as to give maintenance to the wife as envisaged under Section 125 of Cr.P.C.

16. Regarding the guiding principles for the Family Courts to arrive at the quantum of maintenance to be awarded in the maintenance proceedings, the Hon'ble Supreme Court in the decision reported in 1997 (7) SCC page 7 [Smt. Jasbir Kaur Sehgal Vs. The District Judge, Dehradun], has held that the trial Court has to consider the status of the parties, their respective needs, capacity of husband to pay,  having regard to reasonable expenses for his own maintenance and the maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she lived with her husband and the wife should not feel handicapped in prosecution of the case against her husband for maintenance.

Kavitha Vs C.Prabhakar 

Crl.R.C.No.1120 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Orders Reserved on : 27.07.2017)
Orders Pronounced on : 07.09.2017
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

(The whole judgment may be carefully gone thru that is eye –opener and laudable and can provide many answers to many questions of litigants and can help save them time of youthful years, hard earned monies and wastage by spouses that act blindly on advise of others. The ill informed litigating spouses  that act in haste and act blindly, end up wasting their hard earned monies.)
 
(G)  The High Court deprecated the order of trial court and pointed out that trial court should have made reasonable assessment of financial burden on the shoulders of husband.

Prayer:- Criminal Revision Petition filed under Section 397 and 401 Cr.P.C.,
against the order of the Learned II Additional Principal Family Court Judge at
Madras in M.C.No.114 of 2009 dated 23.11.2012 partly allowing the petition
and directed the petitioner/respondent to pay a sum of Rs.3,500/- per month
each respondent/petitioner by its order dated 17.05.2010.

2. The husband is a Revision Petitioner. The first respondent is the wife of the revision petitioner and the second respondent is the daughter of the petitioner and the respondent.

4………………As the petitioner was said to have been neglected the respondent herein, the wife has claimed maintenance under Section 125 Cr.P.C for herself and the daughter before the Principal Family Court, Chennai, alleging that the Revision Petitioner's husband is working as a Manager in TVS at Trichy and his monthly income about Rs.45,000/-. 

The Revision Petitioner who is a respondent before the trial Court filed a counter stating that he is neither working in TVS company nor earning Rs.45,000/- as stated by the wife, but is only working in a private company and is getting a salary of Rs.8,000/- and also he has to  maintain his father aged 75 years who is in ailment.

7. The short point that need to be addressed in this case is as to whether award of maintenance is exorbitant as claimed by the revision petitioner and proved income. 

The revision petitioner/husband has filed Ex.R3, Salary Certificate which was discussed by the trial Court. The respondent is working at Raja Rajan and sons, an Authorized Dealer for Mahindra and Mahindra Limited and earning a salary of Rs.12,000/- per month and after deduction, his salary is Rs.10,350/- and marked as Exhibit.R3. The trial Court has also taken note of the fact that the 1st petitioner/wife is a Post Graduate and she is working at Sankara Matriculation School and also taking tuitions to students of various classes since she is handling Physics subject which is a rare subject and she is earning substantial income however the same is not enough to maintain her and her minor child.

8. This Court also finds that the proved income of the Revision Petitioner/husband is only Rs.12,000/- per month and after deduction, the
revision petitioner/husband take home salary is Rs.10,350/- and admittedly,
the Revision Petitioner/husband is also bound to maintain his ailing father,
which fact cannot be ignored.

10. By the award under challenge, the trial Court has awarded RS.3,500/- for each petitioners by totaling Rs.7,000/- leaving only 3,350/- to the husband for the maintenance of himself as well as his ailing father. 

The situation of the present petition case is analogous to a person caught between the Devil and the Deep Sea. since under the law, he has to maintain the wife and children under Section 125 of the CrPC and he has also to maintain his father under very same section, failing which, he has to face the proceedings, if initiated by the parents of the husband. With the above observations, let us consider the case in hand.

11. Considering the admitted factual position that Revision Petitioner has also to maintain ailing father, the award of the trial Court is found to be excess and accordingly it is modified as Rs.2,500/- instead of Rs.3,500/- for the wife and the child, as the husband has to maintain himself and his father and hence, maintenance award passed by the trial Court in M.C.No.114 of 2009 dated 23.11.2012 stands modified to the above limited extent.

12. In the result, this Criminal Revision Petition is allowed-in-part.
Consequently, connected Miscellaneous Petitions are closed.

Varadharajan 

Vs

1. Mrs.Mythili

2.V.Lavanya (Minor)
Represented by Mother and Natural Guardian
Tmt.V.Mythili
CRL.RC. No.276 of 2013
and
M.P.Nos.1 and 2 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.07.2017

CORAM

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

RESERVED ON :07.07.2017
PRONOUNCED ON :.14.07.2017
http://judis.nic.in/hcs/content.asp

(H) The aged parents can press their rights for care and maintenance upon the son(s), daughters also, as per provisions of:
Maintenance and Welfare of Senior Citizens (MWPSC) Act, 2007 and Rules framed by the respective stated under this Act.

Undoubtedly either of the spouse, relatives; son(s), daughters have to care and maintain the parents. It cannot be ignored. The children, spouses, parents must maintain irrefutable record and evidence. 

(I) The marriage is an institution and all efforts should be made to save the marriage. Both spouses and their relatives have a role to play.

The marriage brings joy and also responsibilities, including financial responsibilities.

In today's materialistic world the meager salary of Rs.10500/pm can not suffice to raise a family that includes spouse, child (ren), parents.

So one must get financially healthy, before deciding for new relation that brings additional responsibilities and financial burdens also.

Like in any other relationship, if relations sour, dispute can occur.

If the fissures in marital relations do not heal despite best efforts the either of the spouse can approach court of law. This situation has its own hazards and financial burden also.

At times, spouses that are employees have to face consequences in employment also.
Many face social stigma as well.

(J) The litigation can be protracted and expensive and stressful.

Either of the spouses must build irrefutable evidence of each factor, facts, income, financial liabilities, expenses, financial burden, and keep the documented evidence ready to be placed before court of law and assist the court to arrive at reasonable decision and award, by the 1st jurisdictional Court of Law, itself and strive to get a reasoned decision and award.

And to appeal to Higher Courts for review if there are defects and flaws at Trial courts, Lower Courts.
The evidence should be such that can be proved, beyond doubt, and thus leaving NO room for Guess and final outcome based on Guess.

 

Kumar Doab 
on 04 October 2017
Published in Family Law
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