# Aditya Narain Mangla Revisionist v. State of U.P. &Anr

- **Citation:** (2019) 1 ILRA 699
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-30
- **Case number:** CRIMINAL REVISION No. 569 of 2017
- **Bench:** Pritinker Diwaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-narain-mangla-revisionist-v-state-of-u-p-anr-44543
- **Pages:** 14

## Headnote

A. Criminal Revision- maintenance- Section
12 of Protection of Women from Domestic
Violence Act, 2005. (Para 10 , 11 & 15)

B. Section 23 read with 20 of Protection
of Women from Domestic Violence Act,
2005 - interim maintenance - son and
wife
-
granted
Rs.
1,00,000/-
maintenance on higher side- wife earlier
working and drawing salary Rs. 20,000/-
maintenance not charity- capable to give
such amount as maintenance to his wife
and son. (Para 13)

C. Jurisdiction - Of High Court at
Lucknow - never lived in Lucknow-
father mother of wife reside at Lucknow
- no merit- application dismissed.

Chronological list of cases cited: -

## Text

_Characters 0–39,979 of 47,189. This is a partial read: ask again with offset=39979 for what follows._

1 All. Aditya Narayan Mangla Vs. State of U.P. & Anr.
699
missing. Allowing the court below to
frame charge against the revisionist and to
go with trial would simply be a futile
exercise and cannot be permitted to do so.
The trial Court has erred in law in
rejecting the application as filed by the
revisionist under Section 227 of Cr PC,
seeking discharge.

15. For the foregoing reasons, the
order impugned is set aside. Application
filed by the revisionist under Section 227
of Cr PC, seeking discharge, is allowed
and revisionist-Amit Kumar is discharged
from the alleged offence.

16. Criminal Revision is allowed.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.07.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.

CRIMINAL REVISION No. 569 of 2017

Aditya Narain Mangla ...Revisionist
Versus
State of U.P. &Anr.. ..Respondents

Counsel for the Revisionist:
Sri C.B. Pandey

Counsel for the Respondents:
Mr. Prachish Pandey, Ms Mahima Pahwa

A. Criminal Revision- maintenance- Section
12 of Protection of Women from Domestic
Violence Act, 2005. (Para 10 , 11 & 15)

B. Section 23 read with 20 of Protection
of Women from Domestic Violence Act,
2005 - interim maintenance - son and
wife
-
granted
Rs.
1,00,000/-
maintenance on higher side- wife earlier
working and drawing salary Rs. 20,000/-
maintenance not charity- capable to give
such amount as maintenance to his wife
and son. (Para 13)

C. Jurisdiction - Of High Court at
Lucknow - never lived in Lucknow-
father mother of wife reside at Lucknow
- no merit- application dismissed.

Chronological list of cases cited: -

1. (2016) 2 SCC 705 Krishna Bhattacharjee Vs.
Sarathi Choudhury and Anr.

2. (2012) 3 SCC 183 V.D. Vhanot Vs. Savita
Bhanot

3. (2014) 3 SCC 712 Saraswathy Vs. Bahu

4. (2015) 5 SCC 705 Shamima Farooqui Vs.
Shahid Khan

5. (1997) 7 SCC 7 Jasbir Kaur Sehgal Vs.
District Judge, Dehradun

6. (2008) 2 SCC 316 Chaturbhuj Vs. Sita Bai

7. (1978) 4 SCC 70 Chander Kaushal Vs.
Veena Kaushal

8.(2005) 3 SCC 636 Savitaben Somabhai
Bhatiya Vs. State of Gujrat
9.1968 SCC OnLine Del 52 Chander Prakash
Bodh Raj Vs. Shila Rani Chander Prakash

10.Criminal Appeal No. 1220 of 2018 Reema
Salkan Vs. Sumer Singh Salkan

11. AIR 2014 SC 2875 Bhuwan Mohan Singh
Vs. Meena

12.2019 SCC Online SC 493 Rupali Devi Vs.
State of Uttar Pradesh (E-10)

(Delivered by Hon'ble Pritinker Diwaker, J.)

Sri C B Pandey, learned counsel for
the revisionist, Sri Prachish Pandey,
learned counsel for the State and Ms
Mahima Pahwa, learned counsel for
respondent no.2.
700 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Challenge in the present revision
is to the order dated 6.4.2019 passed by
the Additional Sessions Judge, Court
No.1, Lucknow in Criminal Appeal
No.0000092
of
2016,
whereby
the
appellate Court has dismissed the appeal,
affirming the order dated 9.3.2016 passed
by Additional Chief Judicial Magistrate,
Vth, Lucknow in a Complaint No.3016 of
2015, granting interim maintenance of
Rs.55,000/- per month in favour of
respondent no.2 and her minor son, aged
about five years.

3. Brief facts of the present case are
that the marriage of revisionist and
respondent no.2 was solemnized on
17.11.2010 at Noida and out of the
wedlock, one son Master Anand was born
on 22.2.2014. After marriage, initially
couple lived at Noida for few days and
thereafter, they shifted to USA where they
lived together for about two years. As the
revisionist was admitted in IndianSchool
of Business for doing his Masters degree,
the couple returned back to Hyderabad
and after completion of the said course at
Hyderabad, they started living at New
Delhi.

4. According to respondent no.2, she
was subjected to physical and mental
torture by the revisionist and under
compelling circumstances, she started
living with her parents. On 17.8.2015,
respondent no.2 filed an application under
Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (in
short 'the Act of 2005') against her
husband and his other family members.
She also filed an application under
Section 23 read with Section 20 of the
said Act, claiming interim order of grant
of maintenance to the tune of Rs.1 lakh
per month. In this application, it has been
contended by the wife that her husband is
a well qualified person having two
Masters Degree, is earning approximately
Rs.45 lakhs per annum and, therefore, she
be awarded suitable maintenance. She has
also submitted that earlier she was
working and was getting Rs.20,000/- per
month, but presently, she is not working
as she has to take care of her minor son.
In the application, various instances of
cruelty meted out to her have been quoted
by respondent no.2 and for brevity, at this
stage, this Court is not referring to all
those pleadings.

5. Counsel for the revisionist
submits:

(i) that learned Magistrate has erred
in law in granting interim maintenance to
respondent no.2 and likewise, the order
passed by the appellate court is also not in
accordance with law wherein the order of
learned Magistrate has been affirmed
without appreciating the correct facts;

(ii) that respondent no.2 had never
lived at Lucknow and as such Lucknow
Court has no jurisdiction to hear the case
filed by her under the provisions of the
Act of 2005. In her entire pleadings,
nowhere it has been stated that as to how
respondent no.2 came to Lucknow and
filed the case at Lucknow;

(iii) that the pleadings as made by the
revisionist have been completely ignored
by the two courts below;

(iv)
that
the
income
of
the
revisionist, while he was serving in USA,
has nothing to do with his salary in India
and the said income cannot be considered,
at all, for determination of interim
maintenance to respondent no.2;

(v) respondent no.2 is living
separately of her own without there being
any justification or sufficient cause;
1 All. Aditya Narayan Mangla Vs. State of U.P. & Anr.
701

(vi) that even as on date, the
revisionist is willing to keep respondent
no.2 with him and his minor son aged
about 5 years;

(vii) that respondent no.2 has done
her Post Graduation in Advertisement and
Marketing and as such, she is in a position
to maintain herself;

(viii)
that
personal
allegations
levelled against the revisionist, including
consuming of liquor with his friends, are
not correct.

(ix) that the interim maintenance
awarded in favour of respondent no.2 is
on the higher side and, under no stretch of
imagination, such amount can be awarded
as interim maintenance; and

(x) that twice the revisionist has
made efforts for mediation and amicable
settlement between the parties, but on
account of non-cooperation of respondent
no.2, the same failed.

6. Supporting the impugned order
passed by learned Magistrate dated
9.3.2016 and that of appellate court dated
6.4.2017, it has been argued on behalf of
respondent no.2:

(i) that application under the Act of
2005 has been rightly filed at Lucknow
because, at the relevant time, respondent
no.2 was living at Lucknow, on the given
address, along with her parent, as after
retirement, her father and mother were
residing in the said house at Lucknow.
Learned counsel submits that in the
affidavit filed in support of main
application,
residential
address
of
Lucknow
has
been
categorically
mentioned by respondent no.2, and even
if she has not mentioned in the memo of
application as to how the cause of action
arose at Lucknow, this would not make
any difference in the case. It has been
argued that pleadings can be substantiated
and proved at the time of evidence.

(ii)
that
concerned
Protection
Officer, in its report, had verified about
the factum of living of respondent no.2 at
Lucknow and the contents of the
applications made by respondent no.2.
Learned counsel further submits that
before the first Court, respondent no.2 had
submitted her Bank Passbook of a
Nationalized Bank and in the said
passbook also address of Lucknow is
being mentioned. It has been further
argued that point of jurisdiction at
Lucknow has been duly considered by
learned Magistrate in its order dated
9.3.2016;

(iii) that the revisionist had filed a
case at Tis Hazari Court, New Delhi for
restitution of conjugal rights, matter
travelled upto the Supreme Court where
on an application filed by respondent
no.2, the Apex Court has transferred the
case from Delhi to Lucknow and at that
time, no objection whatsoever was raised
by the revisionist regarding jurisdiction of
the present case at Lucknow;

(iv) that the revisionist has not
approached this Court with clean hands,
despite the fact that learned Magistrate
has passed the order on 9.3.2016 granting
interim maintenance of Rs.55,000/- per
month to respondent no.2, but till date this
order has not been honoured by him and
the full maintenance amount has not been
paid. Of his own, the revisionist has made
certain submissions before this Court and
had
deposited
meager
amount
(Rs.11,00,000/-, i.e. Rs.1 lakh, Rs.2 lakhs,
Rs.3 lakhs and Rs.5 lakhs pursuant to
orders
passed
by
this
Court
and
Rs.30,000/- per month is being paid from
December
2018
till
date).
Learned
counsel submits that there was no order
from this Court, modifying the amount of
702 INDIAN LAW REPORTS ALLAHABAD SERIES
interim maintenance but yet by adopting
delay tactics, to harass respondent no.2,
entire amount has not been deposited by
the revisionist. According to respondent
no.2, as on date, the revisionist is required
to deposit Rs.8.60 lakhs towards arrears
of interim maintenance;

(v) that respondent no.2 is somehow
surviving along with her son aged about 5
years, though financial capacity of her
father is not as such where he can afford
the expenses of respondent no.2, but
anyhow he too is just managing and
supporting respondent no.2 and her son;

(vi) that learned Magistrate has
assessed the interim maintenance of
Rs.75,000/- per month in favour of
respondent no.2, but erred in law in
deducting Rs.20,000/- per month from
interim maintenance after holding that
respondent no.2 is capable of earning
Rs.20,000/- per month. Learned counsel
submits that though this part has not been
challenged by respondent no.2, but the
same may also be considered by this
Court;

(vii) that even if the income of the
revisionist in USA is ignored, from his
own pleadings it is apparent that he is
earning Rs.1.70 lakhs per month and is
spending Rs.50,000/- on himself. Learned
counsel submits that if the revisionist is
enjoying luxury car, which was purchased
by him on loan, and Rs.35,000/- per
month is being paid as its EMI,
respondent no.2 cannot be blamed for that
and if the revisionist has any financial
constraint, he can definitely go for a
cheaper car. Pleading of the revisionist
about expenditure of Rs.45,000/- towards
parental/domestic support is required to
be ignored and rejected because his father
is a retired public servant and is getting
pension, whereas once respondent no.2 is
living separately along with her son,
question of spending any amount towards
parental/domestic support does not arise
at all;

(viii)
that
on
two
occasions
mediation has failed because offer made
by the revisionist to pay Rs.85 lakhs along
with an accommodation to respondent
no.2, was later denied by him whereas, in
second
mediation
proceeding,
the
revisionist
had
stopped
appearing.
Learned counsel submits that respondent
no.2 is not a maid servant of the
revisionist where she can be ill treated or
ousted at his whims and fancies;

(ix) that under the provisions of the
Act of 2005 itself, affidavits of the parties
are required to be considered and
respondent no.2 in her affidavit has
categorically stated about the manner in
which she was ill treated, the fact that she
is not in a position to maintain herself
along with her son aged about 5 years and
that she was residing at Lucknow.
Likewise, respondent no.2 has given
salary details of the revisionist which has
not been denied in specific manner and,
therefore,
the
pleadings
made
by
respondent no.2 are required to be
accepted as it is;

(x) that once the revisionist has
admitted the fact that he is earning
Rs.1.70 lakhs per month, then interim
maintenance has to be calculated on the
basis of said admission and the living
standard of the parties;

(xi)
that
since
August
2015,
respondent no.2 is fighting for interim
maintenance which has not been paid to
her fully even after the expiry of four
years; and

(xii) that interim maintenance of
Rs.55,000/- per month, at the first
instance, may look at the higher side, but
present is a case where the revisionist is a
well
qualified
person,
earning
1 All. Aditya Narayan Mangla Vs. State of U.P. & Anr.
703
handsomely and enjoying much better
standard in the Society, therefore, he is
equally liable to see the welfare of his
wife and children.

7. Before adverting to the facts of
the case, it would be appropriate to refer
to certain case laws decided by the Apex
Court.
In
the
case
of
Krishna
Bhattacharjee v Sarathi Choudhury
and Anr., the Apex Court held as under:

"3. Regard being had to the
nature of the legislation, a more sensitive
approach is expected from the courts
where under the 2005 Act no relief can be
granted, it should never be conceived of
but, before throwing a petition at the
threshold
on
the
ground
of
maintainability, there has to be an
apposite
discussion
and
thorough
deliberation on the issues raised. It should
be borne in mind that helpless and hapless
"aggrieved person" under the 2005 Act
approaches
the
court
under
the
compelling circumstances. It is the duty
of the court to scrutinise the facts from all
angles whether a plea advanced by the
respondent to nullify the grievance of the
aggrieved person is really legally sound
and correct. The principle "justice to the
cause is equivalent to the salt of ocean"
should be kept in mind. The court of law
is bound to uphold the truth which
sparkles when justice is done. Before
throwing a petition at the threshold, it is
obligatory to see that the person aggrieved
under such a legislation is not faced with
a situation of non-adjudication, for the
2005 Act as we have stated is a beneficial
as
well
as
assertively
affirmative
enactment for the realisation of the
constitutional rights of women and to
ensure that they do not become victims of
any kind of domestic violence.

8. In our prefatory note, we
have stated about the need of sensitive
approach to these kinds of cases. There
can be erroneous perception of law, but as
we find, neither the learned Magistrate
nor the appellate court nor the High Court
has made any effort to understand and
appreciate the stand of the appellant. Such
type of cases and at such stage should not
travel to this Court. We are compelled to
say so as we are of the considered opinion
that had the appellate court and the High
Court
been
more
vigilant,
in
all
possibility,
there
could
have
been
adjudication on merits. Be that as it may.

13. Having scanned the anatomy
of the 2005 Act, we may now refer to a
few decisions of this Courts that have
dealt with the provisions of the 2005 Act.
In V. D. Bhanot v. Savita Bhanot, (2012)
3 SCC 183 the question arose whether the
provisions of the 2005 Act can be made
applicable in relation to an incident that
had occurred prior to the coming into
force of the said Act. Be it noted, the
High Court had rejected the stand of the
respondent therein that the provisions of
the 2005 Act cannot be invoked if the
occurrence had taken place prior to the
coming into force of the 2005 Act. This
Court while dealing with the same
referred to the decision rendered in the
High Court which after considering the
constitutional safeguards under Article 21
of
the
Constitution
vis-a-vis
the
provisions of Sections 31 and 33 of the
2005 Act and after examining the
Statement of Objects and Reasons for the
enactment of the 2005 Act, had held that
it was with the view of protecting the
rights of women under Articles 14, 15 and
21 of the Constitution that Parliament
enacted the 2005 Act in order to provide
for some effective protection of rights
guaranteed under the Constitution to
704 INDIAN LAW REPORTS ALLAHABAD SERIES
women, who are victims of any kind of
violence occurring within the family and
matters
connected
therewith
and
incidental thereto, and to provide an
efficient and expeditious civil remedy to
them and further that a petition under the
provisions of the 2005 Act is maintainable
even if the acts of domestic violence had
been committed prior to the coming into
force of the said Act, notwithstanding the
fact that in the past she had lived together
with her husband in a shared household,
but was no more living with him, at the
time when the Act came into force. After
analyzing the verdict of the High Court,
the Court concurred with the view
expressed by the High Court by stating
thus: (V D Bhanot case, pp. 186-87, para
12)

"12. We agree with the view
expressed by the High Court that in
looking into a complaint under Section 12
of the PWD Act, 2005, the conduct of the
parties even prior to the coming into force
of the PWD Act, could be taken into
consideration while passing an order
under Sections 18, 19 and 20 thereof. In
our view, the Delhi High Court has also
rightly held that even if a wife, who had
shared a household in the past, but was no
longer doing so when the Act came into
force, would still be entitled to the
protection of the PWD Act, 2005."

14. In Saraswathy v. Babu,
(2014) 3 SCC 712, a two-Judge Bench,
after referring to the decision in V.D.
Bhanot (supra), reiterated the principle. It
has been held therein: (Saraswathy case,
SCC p.720, para 24)

"24. We are of the view that the
act of the respondent husband squarely
comes within the ambit of Section 3 of the
DVA, 2005, which defines "domestic
violence" in wide terms. The High Court
made an apparent error in holding that the
conduct of the parties prior to the coming
into force of the DVA, 2005 cannot be
taken into consideration while passing an
order. This is a case where the respondent
husband has not complied with the order
and direction passed by the trial court and
the appellate court. He also misleads the
Court by giving wrong statement before
the High Court in the contempt petition
filed by the appellant wife. The appellant
wife having being harassed since 2000 is
entitled for protection order and residence
order under Sections 18 and 19 of the
DVA, 2005 along with the maintenance
as allowed by the trial court under Section
20(1) (d) of the DVA, 2005. Apart from
these reliefs, she is also entitled for
compensation and damages for the
injuries, including mental torture and
emotional distress, caused by the acts of
domestic violence committed by the
respondent
husband.
Therefore,
in
addition to the reliefs granted by the
courts below, we are of the view that the
appellant wife should be compensated by
the respondent husband. Hence, the
respondent is hereby directed to pay
compensation and damages to the extent
of Rs5,00,000 in favour of the appellant
wife."

8. In the case of Shamima Farooqui
v Shahid Khan2, it has been held by the
Apex Court:

13. When the aforesaid anguish
was expressed, the predicament was not
expected to be removed with any kind of
magic. However, the fact remains, these
litigations can really corrode the human
relationship not only today but will also
have the impact for years to come and has
the potentiality to take a toll on the
society. It occurs either due to the
uncontrolled design of the parties or the
1 All. Aditya Narayan Mangla Vs. State of U.P. & Anr.
705
lethargy and apathy shown by the Judges
who man the Family Courts. As far as the
first aspect is concerned, it is the duty of
the Courts to curtail them. There need not
be hurry but procrastination should not be
manifest, reflecting the attitude of the
Court. As regards the second facet, it is
the duty of the Court to have the complete
control over the proceeding and not
permit the lis to swim the unpredictable
grand river of time without knowing when
shall it land on the shores or take shelter
in a corner tree that stands "still" on some
unknown bank of the river. It cannot
allow it to sing the song of the brook.
"Men may come and men may go, but I
go on for ever." This would be the
greatest tragedy that can happen to the
adjudicating system which is required to
deal with most sensitive matters between
the man and wife or other family
members relating to matrimonial and
domestic affairs. There has to be a
proactive approach in this regard and the
said approach should be instilled in the
Family Court Judges by the Judicial
Academies functioning under the High
Courts. For the present, we say no more.

14. Coming to the reduction of
quantum by the High Court, it is noticed
that the High Court has shown immense
sympathy to the husband by reducing the
amount after his retirement. It has come
on record that the husband was getting a
monthly salary of Rs.17,654/-. The High
Court, without indicating any reason, has
reduced
the
monthly
maintenance
allowance to Rs.2,000/-. In today's world,
it is extremely difficult to conceive that a
woman of her status would be in a
position to manage within Rs.2,000/- per
month. It can never be forgotten that the
inherent and fundamental principle behind
Section 125 CrPC is for amelioration of
the financial state of affairs as well as
mental agony and anguish that woman
suffers when she is compelled to leave her
matrimonial home. The statute commands
there
has
to
be
some
acceptable
arrangements so that she can sustain
herself. The principle of sustenance gets
more heightened when the children are
with her. Be it clarified that sustenance
does not mean and can never allow to
mean a mere survival. A woman, who is
constrained to leave the marital home,
should not be allowed to feel that she has
fallen from grace and move hither and
thither arranging for sustenance. As per
law, she is entitled to lead a life in the
similar manner as she would have lived in
the house of her husband. And that is
where the status and strata of the husband
comes into play and that is where the
legal obligation of the husband becomes a
prominent one. As long as the wife is held
entitled to grant of maintenance within the
parameters of Section 125 Cr PC, it has to
be adequate so that she can live with
dignity as she would have lived in her
matrimonial
home.
She
cannot
be
compelled to become a destitute or a
beggar. There can be no shadow of doubt
that an order under Section 125 Cr PC can
be passed if a person despite having
sufficient means neglects or refuses to
maintain the wife. Sometimes, a plea is
advanced by the husband that he does not
have the means to pay, for he does not
have a job or his business is not doing
well. These are only bald excuses and, in
fact, they have no acceptability in law. If
the husband is healthy, able bodied and is
in a position to support himself, he is
under the legal obligation to support his
wife,
for
wife's
right
to
receive
maintenance under Section 125 Cr PC,
unless disqualified, is an absolute right.

15.
While
determining
the
quantum of maintenance, this Court in
706 INDIAN LAW REPORTS ALLAHABAD SERIES
Jasbir Kaur Sehgal v. District Judge,
Dehradun, (1997) 7 SCC 7, has held as
follows: (SCC p.12 para 8)

"8. ... The court has to consider
the status of the parties, their respective
needs, the capacity of the husband to pay
having regard to his reasonable expenses
for his own maintenance and of those he
is obliged under the law and statutory but
involuntary payments or deductions. The
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."

16. Grant of maintenance to
wife has been perceived as a measure of
social justice by this Court. In Chaturbhuj
v. Sita Bai, (2008) 2 SCC 316, it has been
ruled that: (SCC p. 320, para 6)

"6. ... Section 125 Cr PC is a
measure of social justice and is specially
enacted to protect women and children
and as noted by this Court in Capt.
Ramesh Chander Kaushal v. Veena
Kaushal, (1978) 4 SCC 70 falls within
constitutional sweep of Article 15 (3)
reinforced
by
Article
39
of
the
Constitution of India. It is meant to
achieve a social purpose. The object is to
prevent vagrancy and destitution. It
provides a speedy remedy for the supply
of food, clothing and shelter to the
deserted
wife.
It
gives
effect
to
fundamental rights and natural duties of a
man to maintain his wife, children and
parents when they are unable to maintain
themselves. The aforesaid position was
highlighted
in
Savitaben
Somabhai
Bhatiya v. State of Gujarat, (2005) 3 SCC
636."

17. This being the position in
law, it is the obligation of the husband to
maintain his wife. He cannot be permitted
to plead that he is unable to maintain the
wife due to financial constraints as long
as he is capable of earning.

18. In this context, we may
profitably quote a passage from the
judgment rendered by the High Court of
Delhi in Chander Parkash Bodh Raj v.
Shila Rani Chander Prakash, 1968 SCC
OnLine Del 52, wherein it has been
opined thus: (SCC OnLine Del para 7)

"An able-bodied young man has
to be presumed to be capable of earning
sufficient money so as to be able
reasonably to maintain his wife and child
and he cannot be heard to say that he is
not in a position to earn enough to be able
to maintain them according to the family
standard. It is for such able-bodies person
to show to the Court cogent grounds for
holding that he is unable to reasons
beyond his control, to earn enough to
discharge
his
legal
obligation
of
maintaining his wife and child. When the
husband does not disclose to the Court the
exact
amount
of
his
income,
the
presumption will be easily permissible
against him."

19.
From
the
aforesaid
enunciation of law it is limpid that the
obligation of the husband is on a higher
pedestal
when
the
question
of
maintenance of wife and children arises.
When the woman leaves the matrimonial
home, the situation is quite different. She
is
deprived
of
many
a
comfort.
Sometimes the faith in life reduces.
Sometimes, she feels she has lost the
tenderest friend. There may be a feeling
that her fearless courage has brought her
the misfortune. At this stage, the only
1 All. Aditya Narayan Mangla Vs. State of U.P. & Anr.
707
comfort that the law can impose is that the
husband is bound to give monetary
comfort. That is the only soothing legal
balm, for she cannot be allowed to resign
to
destiny.
Therefore,
the
lawful
imposition for grant of maintenance
allowance.

20. In the instant case, as is
seen, the High Court has reduced the
amount of maintenance from Rs.4,000/-
to Rs.2,000/-. As is manifest, the High
Court has become oblivious of the fact
that she has to stay on her own. Needless
to say, the order of the learned Family
Judge is not manifestly perverse. There is
nothing perceptible which would show
that order is a sanctuary of errOrs. In fact,
when the order is based on proper
appreciation of evidence on record, no
revisional court should have interfered
with the reason on the base that it would
have arrived at a different or another
conclusion. When substantial justice has
been done, there was no reason to
interfere. There may be a shelter over her
head in the parental house, but other real
expenses cannot be ignored. Solely
because the husband had retired, there
was no justification to reduce the
maintenance by 50%. It is not a huge
fortune that was showered on the wife
that it deserved reduction. It only reflects
the
non-application
of
mind
and,
therefore, we are unable to sustain the
said order."

9. Further, in the case of Reema
Salkan v Sumer Singh Salkan, the Apex
Court held as under:

9.
As
aforesaid,
the
sole
question is about the quantum of monthly
maintenance amount payable by the
respondent to the appellant. In that, the
Family Court has unambiguously held
that the respondent neglected to maintain
the appellant, for the elaborate reasons
recorded in its judgment dated 28th
January 2015. That finding of fact has
been upheld by the High Court vide the
impugned judgment. The Family Court
has also found as a fact that the appellant
was unemployed, though she is an MA in
English
and
holds
a
Post-graduate
Diploma
in
Journalism
and
Mass
Communication and is also a Law
Graduate enrolled with the Bar Council of
Delhi. The High Court has not disturbed
that finding recorded by the Family Court.
Resultantly,
both
the
Courts
have
concurrently found that, in law, the
respondent was obliged to maintain the
appellant.

13. Be that as it may, the High
Court took into account all the relevant
aspects and justly rejected the plea of the
respondent
about
inability
to
pay
maintenance amount to the appellant on
the finding that he was well educated and
an able bodied person. Therefore, it was
not open to the respondent to extricate
from his liability to maintain his wife. It
would be apposite to advert to the
relevant
portion
of
the
impugned
judgment which reads thus:

"79. The respondent during the
cross examination has admitted that he
too is B.Com, M.A.(Eco.) and MBA from
Kentucky
University,
USA;
the
respondent is a Canadian citizen working
with Sprint Canada and is earning
Canadian $(CAD) 29,306.59 as net
Annual Salary. However, he has claimed
that he has resigned from Sprint Canada
on 23.11.2010 and the same has been
accepted
on
27.11.2010
and
the
respondent since then is unemployed and
has got no source of income to maintain
himself and his family.

80. In the instant case, the
petitioner has filed the case under Section
708 INDIAN LAW REPORTS ALLAHABAD SERIES
125
Cr.P.C.,
1973
for
grant
of
maintenance as she does not know any
skill and specialised work to earn her
livelihood i.e. in paragraph 26 of
maintenance petition against her husband.
However, the respondent husband who is
well educated and comes from extremely
respectable family simply denies the
same. The respondent husband in his
written statement does not plead that he is
not an able bodied person nor he is able to
prove sufficient earning or income of the
petitioner.

81. It is an admitted fact
emerging on record that both the parties
got married as per Hindu Rights and
Customs on 24.03.2002 and since then the
petitioner was living with her parents
from 10.08.2002 onwards, and the parents
are under no legal obligation to maintain a
married daughter whose husband is living
in
Canada
and
having
Canadian
citizenship. The plea of the respondent
that he does not have any source of
income and he could not maintain the
wife is no answer as he is mature and an
able bodied person having good health
and physique and he can earn enough on
the basis of him being able bodied to meet
the expenses of his wife. In this context,
the observation made in Chander Prakash
v. Shrimati Shila Rani, AIR 1968 Del 174
by this Court is relevant and reproduced
as under:

"7.........an able bodied young
man has to be presumed to be capable of
earning sufficient money so as to be able
reasonably to maintain his wife and child
and he cannot be heard to say that he is
not in position to earn enough to be able
to maintain them according to the family
standard. It is for such ablebodied person
to show to the Court cogent grounds for
holding that he is unable, for reasons
beyond his control, to earn enough to
discharge
his
legal
obligation
of
maintaining his wife and child."

82. The husband being an
ablebodied person is duty bound to
maintain his wife who is unable to
maintain herself under the personal law
arising out of the marital status and is not
under
contractual
obligation.
The
following observation of the Apex Court
in Bhuwan Mohan Singh v. Meena, AIR
2014 SC 2875, is relevant:

"3.....Be it ingeminated that
Section 125 of the Code of Criminal
Procedure (for short "the Code") was
conceived to ameliorate the agony,
anguish, financial suffering of a woman
who left her matrimonial home for the
reasons provided in the provision so that
some suitable arrangements can be made
by the court and she can sustain herself
and also her children if they are with her.
The concept of sustenance does not
necessarily mean to lead the life of an
animal, feel like an unperson to be thrown
away from grace and roam for her basic
maintenance somewhere else. She is
entitled in law to lead a life in the similar
manner as she would have lived in the
house of her husband. That is where the
status and strata come into play, and that
is where the obligations of the husband, in
case of a wife, become a prominent one.
In a proceeding of this nature, the
husband cannot take subterfuges to
deprive her of the benefit of living with
dignity. Regard being had to the solemn
pledge at the time of marriage and also in
consonance with the statutory law that
governs the field, it is the obligation of
the husband to see that the wife does not
become a destitute, a beggar. A situation
is not to be maladroitly created where
under she is compelled to resign to her
fate and think of life "dust unto dust". It is
totally impermissible. In fact, it is the
1 All. Aditya Narayan Mangla Vs. State of U.P. & Anr.
709
sacrosanct duty to render the financial
support even if the husband is required to
earn money with physical labour, if he is
ablebodied. There is no escape route
unless there is an order from the court that
the wife is not entitled to get maintenance
from
the
husband
on
any
legally
permissible grounds.
 (emphasis applied)

83. The respondent's mere plea that
he does not possess any source of income
ipso facto does not absolve himself of his
moral duty to maintain his wife in
presence of good physique along with
educational qualification."

The view so taken by the High
Court
is
unassailable.
Indeed,
the
respondent has raised a plea to question
the correctness of the said view, in the
reply affidavit filed in this appeal, but in
our opinion, the finding recorded by the
High Court is unexceptionable.

15. The principle invoked by the
High Court for determination of monthly
maintenance amount payable to the appellant
on the basis of notional minimum income of
the respondent as per the current minimum
wages in Delhi, in our opinion, is untenable.
We are of the considered opinion that regard
must be had to the living standard of the
respondent and his family, his past conduct
in successfully protracting the disposal of the
maintenance petition filed in the year 2003,
until 2015; coupled with the fact that a
specious and unsubstantiated plea has been
taken by him that he is unemployed from
2010, despite the fact that he is highly
qualified and an ablebodied person; his
monthly income while working in Canada in
the year 2010 was over Rs.1,77,364/ and that
this
Court
in
Criminal
Appeal
Nos.23472349/ 2014 has prima facie found
that the cause of justice would be subserved
if the appellant is granted an interim
maintenance
of
Rs.20,000/per
month
commencing from November 1, 2014. At
this distance of time, keeping in mind the
spiraling inflation rate and high cost of living
index today, to do complete justice between
the parties, we are inclined to direct that the
respondent shall pay a sum of Rs.20,000/per
month to the appellant towards the
maintenance amount with effect from
January 2010 and at the rate of Rs.25,000/per
month with effect from 1st June, 2018 until
further orders. We order accordingly."

10. From the above principles of law
laid down by the Apex Court, it is quite
apparent that husband while paying
interim maintenance does not do any
charity and it is his abandon duty to take
care of his family and wife and children
cannot be left at the mercy of the
husband. If wife and children are not in a
position to maintain themselves, it is legal
duty of the husband to maintain them
irrespective of the fact whether he is
earning more or less. In the case of
sufficient income on the part of the
husband,
he
has
to
pay
interim
maintenance to his wife and children as
per standard of living and to ensure that
they meet all the necessary requirements
for their dignified survival.

11. Present is a case where, from the
pleading of the parties, it is apparent that
husband is, at least, earning Rs.1.70 lakhs
per month and thus, even if I ignore his
previous income which he was drawing in
USA, it can be easily held that he is
earning
handsomely
and
can
pay
sufficient
amount
for
survival
of
respondent no.2 and her son. Even the
revisionist has admitted the fact that he is
expending Rs.50,000/- on himself apart
from Car loan of Rs.35,000/- per month
being paid by him. The revisionist has
also admitted the fact that he is spending
710 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.45,000/- towards parental/domestic
support. When his father is a retired
government
employee
and
getting
sufficient pension, then the revisionist is
obliged to give priority to his wife and
son for maintaining them in a dignified
manner.

12. I find no substance in the
argument of the revisionist that the case
filed by respondent no.2 in Lucknow
Court is not maintainable. In the case of
Rupali Devi v State of Uttar Pradesh, it
has been held by the Apex Court:

1. "Whether a woman forced to
leave her matrimonial home on account of
acts and conduct that constitute cruelty
can initiate and access the legal process
within the jurisdiction of the courts where
she is forced to take shelter with the
parents or other family members". This is
the precise question that arises for
determination in this group of appeals.

5. The above two views which
the
learned
referring
bench
had
considered while making the present
reference, as already noticed, were
founded on the peculiar facts of the two
sets of cases before the Court. It may be
possible to sustain both the views in the
light of the facts of the cases in which
such view was rendered by this court.
What confronts the court in the present
case is however different. Whether in a
case where cruelty had been committed in
a matrimonial home by the husband or the
relatives of the husband and the wife
leaves the matrimonial home and takes
shelter in the parental home located at a
different place, would the courts situated
at the place of the parental home of the
wife have jurisdiction to entertain the
complaint under Section 498A. This is in
a situation where no overt act of cruelty or
harassment is alleged to have been
committed by the husband at the parental
home where the wife had taken shelter.

14. "Cruelty" which is the crux
of the offence under Section 498A IPC is
defined in Black's Law Dictionary to
mean "The intentional and malicious
infliction of mental or physical suffering
on a living creature, esp. a human;
abusive
treatment;
outrage
(Abuse,
inhuman treatment, indignity)". Cruelty
can be both physical or mental cruelty.
The impact on the mental health of the
wife by overt acts on the part of the
husband or his relatives; the mental stress
and trauma of being driven away from the
matrimonial home and her helplessness to
go back to the same home for fear of
being ill treated are aspects that cannot be
ignored while understanding the meaning
of the expression "cruelty" appearing in
Section 498A of the Indian Penal Code.
The emotional distress or psychological
effect on the wife, if not the physical
injury, is bound to continue to traumatize
the wife even after she leaves the
matrimonial home and takes shelter at the
parental home.