# Sunil Sharma v. Smt. Gunjan Kumari @ Sitara Begum

- **Citation:** (2021) 3 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-06
- **Case number:** First Appeal Defective No. 338 of 2020
- **Bench:** Mahesh Chandra Tripathi, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-sharma-v-smt-gunjan-kumari-sitara-begum-46932
- **Pages:** 8

## Headnote

-----

Appeal against the interim maintainancehusband claims that before mariage-his
wife had converted herself as Muslim and
also married a muslim-and had a child-all
the
facts
were
concealed-anulment
petition filed-Maintenance u/s 125 Cr.P.C.
may be claimed irrespective of religious
community-Appeal dismissed. (E-7)

Cases cited:

## Text

3 All. Sunil Sharma Vs. Smt. Gunjan Kumari @ Sitara Begum
265
156(3) Cr.P.C. for appropriate orders
instead of invoking writ jurisdiction
under Article 226 of the Constitution of
India.

18. For all the reasons aforestated, all
the writ petitions are dismissed leaving it
open to the petitioners to approach the
Magistrate concerned under Section 156(3)
of Cr.P.C. for fair and proper investigation.
----------
(2021)03ILR A265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

First Appeal Defective No. 338 of 2020

Sunil Sharma ...Appellant
Versus
Smt. Gunjan Kumari @ Sitara Begum
 ...Respondent

Counsel for the Appellant:
Sri Ram Jatan Yadav, Sri Rakesh Kumar
Verma

Counsel for the Respondent:
-----

Appeal against the interim maintainancehusband claims that before mariage-his
wife had converted herself as Muslim and
also married a muslim-and had a child-all
the
facts
were
concealed-anulment
petition filed-Maintenance u/s 125 Cr.P.C.
may be claimed irrespective of religious
community-Appeal dismissed. (E-7)

Cases cited:

1. Bhagwan Dutt Vs Kamla Devi, 1975 (2) SCC
386
2.Rajnesh Vs Neha & ors., MANU/SC/0833/2020

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
& Hon'ble Sanjay Kumar Pachori,J.))

1. Heard learned counsel for the
appellant.

2. Cause shown in the affidavit
accompanying
the
delay
condonation
application is sufficient. The application is
allowed. Office is directed to accord
regular number to the appeal.

3. Present appeal has been preferred
assailing the validity of the order dated
28.02.2020 passed by Addl. Principal
Judge, Family Court No.2, Agra on the
interim
maintenance
application
9-Ga
under Section 24 of the Hindu Marriage
Act, 19551 filed in Case No.172 of 2017
(Sunil Sharma v. Smt. Gunjan Kumari) by
which the opposite party (appellant herein)
was directed to pay Rs. 5000/- per month as
interim maintenance on 10th of each month
with further direction that if opposite party
is being given maintenance in any other
proceeding, the same would be adjusted in
this interim maintenance.

4. Brief facts giving rise to present
appeal is that the marriage of the appellant
(husband) was solemnized with respondent
(wife) as per Hindu rites and rituals on
21.11.2015 at Arya Samaj Temple, Raja Ki
Mandi, Agra. It is alleged that after the
marriage the appellant came to know that
before the marriage the respondent had
converted herself and practised Muslim
religion and was known as Sitara Begum.
She married on 10.04.2013 with one
Azeem Uddin @ Kunal @ Sameer son of
Shri Shamim Ahmad resident of Rajavpur
P.S. Rajavpur Distt. J.P. Nagar and out of
266 INDIAN LAW REPORTS ALLAHABAD SERIES
the said wedlock a son was also born
namely Riyan @ Aryan. Later she
separated from the said wedlock with
compromise and concealing this fact she
has remarried with the appellant. When the
said fact of her being non-Hindu was
revealed she herself left the house of
appellant and with the collusion of her
parental members she filed a Case No. 329
of 2017 (Smt. Gunjan Sharma & Ors. v.
Sunil Sharma & Ors.) under the provisions
of Protection of Women from Domestic
Violence Act, 20052 in which the Addl.
Chief Judicial Magistrate, Court No.7,
Agra has passed an order on 21.8.2018
directing the appellant to pay a sum of Rs.
3000/- per month to the respondent and
also pay a sum of Rs. 1000/- to the child of
respondent namely Ayran Sharma. It is also
contended that as the respondent did not
change her religion, her marriage with
appellant is null and void. The Addl.
Principal Judge, Family Court No. 2 has
not considered the factual aspect of the
matter and passed the order impugned.

5. The matrimonial case no. 172 of
2017 has been filed by the appellant against
the respondent under Section 11 of HMA
for declaration that the marriage dated
21.11.2015 solemnised between the parties
is null and void-ab-initio.

6. While preferring the interim
maintenance application 9-Ga filed in Case
No. 172 of 2017 the version of the respondent
was that after the marriage the appellant has
left her in destitution. Once she has requested
to keep her with him, he has threatened her of
dire consequences. She had pleaded before
the court below that she has no income for
livelihood and in this backdrop the order
impugned has been passed.

7. The Court has proceeded to
examine the record in question and find
that this is admitted situation that the
respondent is legally wedded wife of the
appellant. This fact has also been admitted
by the appellant before the court below that
he is earning Rs. 6000/- per month. He has
also not been able to prove that the
respondent is in any employment. The
court below while passing the order
impugned has opined that it is the moral
and social responsibility of the husband to
give maintenance to his wife as per his
capacity. In this backdrop the order
impugned has been passed.

8.

The
Court
finds
that
the
maintenance laws have been enacted as a
measure of social justice to provide
recourse to dependant wives and children
for their financial support, so as to prevent
them from falling into destitution and
vagrancy. The legislations which have been
framed on the issue of maintenance are the
Special Marriage Act, 1954,3 Section 125
of the Code of Criminal Procedure, 19734;
and the DV Act which provide a statutory
remedy to women, irrespective of the
religious community to which they belong,
apart from the personal laws applicable to
various
religious
communities.
Maintenance may be claimed under one or
more of the aforementioned statutes, since
each of these enactments provides an
independent and distinct remedy framed
with a specific object and purpose. For
instance,
a
Hindu
wife
may
claim
maintenance under the Hindu Adoptions
and Maintenance Act 19565, and also in a
substantive
proceeding
for
either
dissolution of marriage, or restitution of
conjugal rights, etc. under the HMA by
invoking Section 24 and 25 of the said Act.
3 All. Sunil Sharma Vs. Smt. Gunjan Kumari @ Sitara Begum
267

9. The HMA is a complete code
which provides for the rights, liabilities and
obligations
arising
from
a
marriage
between two Hindus. Sections 24 and 25 of
the HMA make provision for maintenance
to a party who has no independent income
sufficient for his or her support, and
necessary expenses. This is a genderneutral provision, where either the wife or
the husband may claim maintenance. The
pre-requisite is that the applicant does not
have
independent
income
which
is
sufficient for her or his support, during the
pendency of the lis. Section 24 of the HMA
provides for maintenance pendente-lite,
where the Court may direct the respondent
to pay the expenses of the proceeding, and
pay such reasonable monthly amount,
which is considered to be reasonable,
having regard to the income of both the
parties. Section 25 provides for permanent
alimony and maintenance. Section 26 of the
HMA provides that the court may from
time to time pass interim orders with
respect to the custody, maintenance and
education of the minor children.

10. HAMA is a special legislation
which was enacted to amend and codify the
laws relating to adoption and maintenance
amongst Hindus, during the subsistence of
the marriage. Section 18 provides that a
Hindu wife shall be entitled to be
maintained by her husband during her
lifetime. She is entitled to make a claim for
a separate residence, without forfeiting her
right to maintenance. Section 18 read in
conjunction with Section 23 states the
factors required to be considered for
deciding the quantum of maintenance to be
paid. Under sub-section (2) of Section 18,
the husband has the obligation to maintain
his wife, even though she may be living
separately.
The
distinction
between
maintenance under HMA and HAMA is
that the right under Section 18 of HAMA is
available during the subsistence of a
marriage,
without
any
matrimonial
proceeding pending between the parties.
Once there is a divorce, the wife has to
seek relief under Section 25 of HMA.
Section 125 of Cr.PC. also provides for
maintenance of wife, children and parent in
summary proceeding.

11. Maintenance under Section 125 of
the Cr.P.C. may be claimed by a person
irrespective of the religious community to
which they belong. The purpose and object
of Section 125 Cr.P.C. is to provide
immediate
relief
to
an
applicant.
Maintenance is awarded on the basis of the
financial capacity of the husband and other
relevant factors. The remedy provided by
Section 125 is summary in nature, and the
substantive
disputes
with
respect
to
dissolution of marriage can be determined
by a civil court/ family court in an
appropriate proceeding, such as the HMA.
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 vide Bhagwan Dutt
v Kamla Devi6.

12. The DV Act provides relief to an
aggrieved woman who is subjected to
"domestic
violence."
The
"aggrieved
person" has been defined by Section 2 (a)
to mean any woman who is, or has been, in
a
domestic
relationship
with
the
respondent, and alleges to have been
subjected to any act of domestic violence.
Section
2
(f)
defines
"domestic
relationship" to include a relationship
between two persons who live, or have at
any point of time lived together in a shared
268 INDIAN LAW REPORTS ALLAHABAD SERIES
household, when they are related by
consanguinity, marriage, or through a
relationship in the nature of marriage,
adoption, or are family members living
together as a joint family.

13. "Domestic violence" has been
defined in Section 3 of the DV Act, which
includes economic abuse as defined in
Explanation-1 (iv) to Section 3, as :

"Explanation-1 (iv)- Economic
abuse which means deprivation of all or
any economic or financial resources, to
which the aggrieved person is entitled
under any law or custom, whether payable
under an order of a Court or otherwise, or
which the aggrieved person requires out of
necessity, including but not limited to
household necessities for the aggrieved
person, or her children."

14. Section 17 by a non-obstante
clause
provides
that
notwithstanding
anything contained in any other law for the
time being in force, every woman in a
domestic relationship shall have the right to
reside
in
the
"shared
household",
irrespective of whether she has any right,
title or beneficial interest in the same.
Section 17 of the DV Act, reads as :

"17. Right to reside in a shared
household.-(1) Notwithstanding anything
contained household: in any other law for
the time being in force, every woman in a
domestic relationship shall have the right
to reside in the shared household, whether
or not she has any right, title or beneficial
interest in the same.

(2) The aggrieved person shall
not be evicted or excluded from the shared
household or any part of it by the
respondent save in accordance with the
procedure established by law."

15. Section 20 of the DV Act,
provides for monetary relief to the
aggrieved woman:

"20.
Monetary
reliefs.-
(1)
While disposing of an application under
sub-section
(1)
of
section
12,
the
Magistrate may direct the respondent to
pay monetary relief to meet the expenses
incurred and losses suffered by the
aggrieved person and any child of the
aggrieved person as a result of domestic
violence and such relief may include, but
is not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to
destruction, damage or removal of any
property from the control of the aggrieved
person; and

(d) the maintenance for the
aggrieved person as well as her children,
if any, including an order under or in
addition to an order of maintenance under
section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) or any other
law for the time being in force.

(2) The monetary relief granted
under this section shall be adequate, fair
and reasonable and consistent with the
standard of living to which the aggrieved
person is accustomed.

(3) The Magistrate shall have the
power to order an appropriate lump sum
payment
or
monthly
payments
of
maintenance,
as
the
nature
and
circumstances of the case may require."

16. Section 20 (1) (d) of the DV Act,
provides that maintenance granted under
the D.V. Act to an aggrieved woman and
children, would be given effect to, in
addition to an order of maintenance
awarded under Section 125 of the Cr.P.C.,
or any other law in force.
3 All. Sunil Sharma Vs. Smt. Gunjan Kumari @ Sitara Begum
269

17. Under sub-section (6) of Section
20 of the DV Act, the Magistrate may
direct the employer or debtor of the
respondent, to directly pay the aggrieved
person, or deposit with the court a portion
of the wages or salaries or debt due to or
accrued to the credit of the respondent,
which amount may be adjusted towards the
monetary relief payable by the respondent.

18. Section 22 of the DV Act,
provides that the Magistrate may pass an
order directing the respondent to pay
compensation and damages for the injuries,
including mental torture and emotional
distress, caused by the acts of domestic
violence perpetrated by the respondent.

19. Section 23 of the DV Act,
provides that the Magistrate may grant an
ex-parte order, including an order under
Section 20 for monetary relief. The
Magistrate must be satisfied that the
application filed by the aggrieved woman
discloses that the respondent is committing,
or has committed an act of domestic
violence, or that there is a likelihood that
the respondent may commit an act of
domestic violence. In such a case, the
Magistrate is empowered to pass an ex
parte order on the basis of the affidavit of
the aggrieved woman.

20. Section 26 of the DV Act provides
that any relief available under Sections 18,
19, 20, 21 and 22 may also be sought in
any legal proceeding before a Civil Court,
Family Court or Criminal Court. Subsection (2) of Section 26 provides that the
relief mentioned in sub-section (1) may be
sought in addition to, and alongwith any
other relief that the aggrieved person may
seek in a suit or legal proceeding before a
civil or criminal court. Section 26 (3)
provides that in case any relief has been
obtained by the aggrieved person in any
proceeding other than proceedings under
this Act, the aggrieved woman would be
bound to inform the Magistrate of the grant
of such relief.

21. Section 36 provides that the DV
Act shall be in addition to, and not in
derogation of the provisions of any other
law for the time being in force.

22.
 The
issue
of
overlapping
jurisdictions under the HMA and DV Act
or Cr.P.C. came up for consideration before
a division bench of the Delhi High Court in
RD v BD7, wherein the Court held that
maintenance granted to an aggrieved
person under the DV Act, would be in
addition to an order of maintenance under
Section 125 Cr.P.C., or under the HMA.
The legislative mandate envisages grant of
maintenance to the wife under various
statutes. It was not the intention of the
legislature that once an order is passed in
either of the maintenance proceedings, the
order would debar re-adjudication of the
issue
of
maintenance
in
any
other
proceeding. In paragraphs 16 and 17 of the
judgment, it was observed that :

"16. A conjoint reading of the
aforesaid Sections 20, 26 and 36 of DV Act
would clearly establish that the provisions
of DV Act dealing with maintenance are
supplementary to the provisions of other
laws and therefore maintenance can be
granted to the aggrieved person (s) under
the DV Act which would also be in addition
to any order of maintenance arising out of
Section 125 of Cr.P.C.

17. On the converse, if any order
is passed by the Family Court under
Section 24 of HMA, the same would not
debar the Court in the proceedings arising
out of DV Act or proceedings under Section
270 INDIAN LAW REPORTS ALLAHABAD SERIES
125
of
Cr.P.C.
instituted
by
the
wife/aggrieved
person
claiming
maintenance. However, it cannot be laid
down as a proposition of law that once an
order of maintenance has been passed by
any Court then the same cannot be readjudicated upon by any other Court. The
legislative mandate envisages grant of
maintenance to the wife under various
statutes such as HMA, Hindu Adoption and
Maintenance
Act,
1956
(hereinafter
referred to as 'HAMA'), Section 125 of
Cr.P.C. as well as Section 20 of DV Act. As
such various statutes have been enacted to
provide for the maintenance to the wife and
it is nowhere the intention of the legislature
that once any order is passed in either of
the proceedings, the said order would
debar re adjudication of the issue of
maintenance in any other Court."

23. The Delhi High Court held that
under Section 20(1)(d) of the DV Act,
maintenance awarded to the aggrieved
woman under the DV is in addition to an
order of maintenance provided under
Section
125
Cr.P.C.
The
grant
of
maintenance under the DV Act would not
be a bar to seek maintenance under Section
24 of HMA.

24. The test for determination of
maintenance
in
matrimonial
disputes
depends on the financial status of the
respondent, and the standard of living that
the applicant was accustomed to in her
matrimonial
home.
The
maintenance
amount awarded must be reasonable and
realistic, and avoid either of the two
extremes i.e. maintenance awarded to the
wife should neither be so extravagant
which becomes oppressive and unbearable
for the respondent, nor should it be so
meagre that it drives the wife to penury.
The sufficiency of the quantum has to be
adjudged so that the wife is able to
maintain herself with reasonable comfort.

25. Recognising the need for
uniformity, consistency, procedural fairness
and
temeliness
in
the
disposal
of
maintenance applications, in Rajnesh v.
Neha & Ors.,8 Hon'ble the Supreme Court
issued guidelines on the payment of
maintenance
in
matrimonial
disputes.
While
setting
out
the
criteria
for
determining the amount of maintenance to
be paid, the Apex Court recognised that
there is no one-size-fits-all formula for
deciding the maintenance in matrimonial
case.
Stressing
the
importance
of
maintaining a careful and just balance
between all relevant factors, the Apex
Court held that the amount of maintenance
awarded must be reasonable and realistic.
In addition to the statutory guidance, the
Apex Court directed a number of indicative
factors to be considered when determining
the amount of maintenance to be paid,
including; the status of the parties; the
reasonable needs of the wife and dependent
children; whether the applicant is educated
and professionally qualified; whether the
applicant has any independent source of
income; whether the income is sufficient to
enable the applicant to maintain the same
standard of living to which she was
accustomed in her matrimonial house;
whether the applicant was employed prior
to marriage; whether the applicant worked
during the subsistence of the marriage;
whether the applicant had to sacrifice her
employment opportuities to care for the
couple's family and children; and the
reasonable costs of litigation for a nonworking wife.

26. Further to the above guidelines,
the Apex Court set out additional factors
for determining the amount of maintenance
3 All. Sunil Sharma Vs. Smt. Gunjan Kumari @ Sitara Begum
271
to be paid, including; the age and
employment status of the parties; the
duration of the marriage; the maintenance
of any minor children; and any serious
disability or ill health of a spouse, child
from the marriage or dependent relative
who requires constant care and recurrent
expenditure.
These
factors
are
not
exhaustive and the court can exercise its
discretion to consider any other factors
which may be necessary or relevant in the
facts of a particular case.

27. Hon'ble the Supreme Court in
Rajnesh (Supra) considering the issue of
maintenance and overlapping jurisdiction
has held as under:-

"(a) Issue of overlapping jurisdiction

98. To overcome the issue of
overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, it
has become necessary to issue directions in this
regard, so that there is uniformity in the
practice followed by the Family Courts/District
Courts/Magistrate
Courts
throughout
the
country. We direct that:

(i) where successive claims for
maintenance are made by a party under
different statutes, the Court would consider an
adjustment or set-off, of the amount awarded in
the previous proceeding/s, while determining
whether any further amount is to be awarded in
the subsequent proceeding;

(ii) it is made mandatory for the
applicant to disclose the previous proceeding
and the orders passed therein, in the subsequent
proceeding;

(iii) if the order passed in the
previous
proceeding/s
requires
any
modification or variation, it would be required
to be done in the same proceeding.

(b) Payment of Interim Maintenance

99. The Affidavit of Disclosure of
Assets and Liabilities annexed as Enclosures I,
II and III of this judgment, as may be
applicable, shall be filed by both parties in all
maintenance proceedings, including pending
proceedings before the concerned Family
Court/District Court/ Magistrates Court, as the
case may be, throughout the country.

(c) Criteria for determining the
quantum of maintenance

100. For determining the quantum of
maintenance payable to an applicant, the Court
shall take into account the criteria enumerated
in Part B - III of the judgment.

101. The aforesaid factors are
however not exhaustive, and the concerned
Court may exercise its discretion to
consider any other factor/s which may be
necessary or of relevance in the facts and
circumstances of a case.

(d) Date from which maintenance
is to be awarded

102. We make it clear that
maintenance in all cases will be awarded
from the date of filing the application for
maintenance, as held in Part B - IV above.

(e)
Enforcement/Execution
of
orders of maintenance

103. For enforcement/execution
of orders of maintenance, it is directed that
an order or decree of maintenance may be
enforced under Section 28A of the Hindu
Marriage Act, 1956; Section 20 (6) of the
D.V. Act; and Section 128 of Cr.P.C., as
may
be
applicable.
The
order
of
maintenance may be enforced as a money
decree of a civil court as per the provisions
of the CPC, more particularly Sections 51,
55, 58, 60 r.w. Order XXI.

104. Before we part with this
judgment, we note our appreciation of the
valuable assistance provided by the Ld.
Amici Curiae Ms. Anitha Shenoy and Mr.
Gopal
Sankaranarayanan,
Senior
Advocates in this case.

105. A copy of this judgment be
communicated by the Secretary General of
272 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court, to the Registrars of all High
Courts, who would in turn circulate it to all
the District Courts in the States. It shall be
displayed on the website of all District
Courts/Family Courts/Courts of Judicial
Magistrates
for
awareness
and
implementation."

28. In the aforesaid facts and
circumstances of the case, the Court does
not find any infirmity or illegality in the
order impugned so as to make interference
by this Court under Section 19 of the
Family Courts Act, 19849. The court below
has passed just and reasoned order and no
interference is required in the matter.

29. Consequently, first appeal fails
and is accordingly dismissed.

30. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the appellant
alongwith a self attested identity proof of
the said person (preferably Aadhar Card)
mentioning the mobile number to which the
said Aadhar Card is linked.

31.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)03ILR A272
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2020

BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.

FAFO No. 78 of 2011
Virendra Kumar ...Appellant
Versus
Vijay Kumar & Ors. ...Respondents

Counsel for the Appellant:
Sri B.P. Verma, Sri Mayank

Counsel for the Respondents:
Sri S.C. Srivastava

Claimant suffers a permanent disability
from injuries-assesment of compensation
under head of loss of future earningsdepend upon his earning capacity-in terms
of percentage of income-then to be
quantified in money-adoption of multiplier
method -Appeal allowed. (E-7)

Cases cited:

1. Rajesh Kumar @ Raju Vs Yudhvir Singh &
anr., 2008 (3) T.A.C. 17 (SC)

2. Smt. Sarita Verma & ors. Vs Delhi
Transport Corporation & anr., 2009 ACJ
1298

3. Syed Sadiq & ors. Vs Divisional Manager,
United India Ins. Company, 2014 (2) SCC
735

4. National Insurance Company Limited Vs
Pranay Sethi & ors, (2017) 16 SCC 680

5. The New India Assurance Company Ltd.
Through Divisional Manager Vs Mohammad
Navi, 2008 (72) ALR 620

6. The New India Assurance Co. Ltd Vs Amzad
Khan & ors, MANU/UP/0310/2016

7. R.D. Hattangadi Vs Pest Control (India) Pvt.
Ltd, (1995) 1 SCC 551

8. Common Cause, A Registered Society Vs
U.O.I., (1999) 6 SCC 667

9. Nagappa Vs Gurudayal Singh, (2003) 2 SCC
274

10. Divisional Controller, KSRTC Vs Mahadeva
Shetty, (2003) 7 SCC 197