1. Revision on hand is preferred by the respondent aggrieved by the order passed by the Family Court, Ernakulam on 04.09.2019 in M.C.No.47 of 2019, directing him to pay maintenance at the rate of Rs.25,000/- to the minor child born to him in his marital life with Smt.Anjana Gopinath. Petition seeking maintenance was filed before Family Court, Ernakulam under Section 125 Cr.P.C and being minor at the relevant time, the child was represented in the petition by his mother, Smt.Anjana Gopinath as his next friend.
2. The parties for convenience will be referred to hereinafter as the petitioners and the respondent. Shorn off unnecessary matters, the facts relevant for disposal of this revision are stated hereunder.
3. The respondent married Smt.Anjana Gopinath on 27.01.2010 and a child was born on 24.06.2012. Within a short time after the marriage, Smt.Anjana was subjected to ill-treatment by the respondent and in-laws, physically as well as mentally. The child was neglected by the respondent and did not care to maintain him from 25.12.2013. The respondent was working as Senior Specialist, Mavenir Systems GMBH at Germany and was earning Rs.5,00,000/- per month. Seeking Rs.25,000/- as maintenance from the respondent M.C was preferred. Original Petitions seeking for dissolution of marriage and return of money were also preferred in the meantime.
4. In the counter statement filed in the M.C, all allegations raised against him except his status were denied. It was contended that Smt.Anjana Gopinath alongwith the child left the company of the respondent without any valid and justifiable reason and all efforts to bring them back, turned futile. Therefore, he was constrained to file an application seeking dissolution of marriage and as a counterblast the M.C was filed. Smt.Anjana Gopinath was working at the relevant time as Manager in UCO Bank and had a monthly income of Rs.1,00,000/-. The desertion of the mother and child caused mental trauma to the respondent and consequently to several physical ailments. He was constrained to take leave for six months. His salary at the relevant time was only Rs.1,25,000/- and out of that, his house rent, tax, compulsory social security and health insurance were met with. He has to meet expenses of his livelihood, which is high in Germany. He has to repay the house loan arrears also. According to him, the child being a minor does not require a huge sum of Rs.25,000/- as maintenance. According to him, the interim maintenance ordered by the Family Court was interfered with by this Court and was reduced to Rs.5,000/- monthly when a challenge was raised against, vide O.P(Crl.) No.183 of 2019.
5. Smt.Anjana Gopinath tendered oral evidence in the M.C as PW1 and the respondent as DW2. The Power of Attorney Holder of the respondent was also examined as DW1. Exts.P1 to P9 and D1 to D3 were also marked by the respective parties.
6. On appreciation of the above evidence the Family Court found the child entitled to live in the same status in which the respondent was at the relevant time and accordingly directed the respondent to pay Rs.25,000/- as maintenance to him from the date of the petition. The Family Court had also gone to the extent of ordering:
“PW1 is permitted to take only Rs.10,000/- per month and the balance Rs.15,000/- shall be deposited in a recurring deposit with any nationalized bank with she as the nominee. Interim maintenance paid will be adjusted towards the maintenance due. Pw1 is directed to open an account forthwith and intimate the respondent and file memo.”
7. The respondent was highly prejudiced by the exorbitant sum directed to be paid by him as maintenance and accordingly filed the revision on hand calling for interference.
8. Smt.Sumathy Dandapani, the learned Senior Counsel has urged at the outset that the Family court is highly erred in ordering an exorbitant sum of Rs.25,000/- as maintenance and directing Rs.10,000/- to be paid to the mother of the minor child and Rs.15,000/- to be deposited in recurring deposit in any Nationalized Bank with the mother as the nominee. According to her, the Family Court has made it clear in the impugned order that the amount deposited shall only be utilised for the benefit of the child on attaining majority, for his educational or other purpose. According to the learned counsel, after arriving at a sum of Rs.25,000/- as payable to the child, the Family Court has issued a direction to the next friend to deposit Rs.15,000/- in a recurring deposit in a nationalised bank till the attainment of age of majority of the child to be utilised for his educational or other purposes, and therefore, the said sum is not meant by the court to be paid as monthly maintenance.
9. According to the learned Senior Counsel, since the word 'maintenance' is not defined under the Code, definition incorporated under Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 could be adopted to have an idea about the provisions need to be taken care of while determining the quantum payable as maintenance. She has also drawn the court's attention to the said definition which is extracted hereunder:
“3. Definitions.- In this Act, unless the context otherwise requires,-
(b) “Maintenance” includes-
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage;”
10. According to the learned counsel as contemplated under Section 125 Cr.P.C maintenance is liable to be paid by the husband, father or son as the case may be, monthly to sustain the livelihood of a wife or child, legitimate or illegitimate, unable to maintain himself or herself and his father or mother unable to maintain himself or herself and as is indicated from the above definition maintenance would takes within it's purview, provisions for food, clothing, residence, education, medical attendance and treatment, which are the day to day requirements of the party who has applied for maintenance, and if the court has meant the same to be paid as maintenance, it must have been ordered to be released to the 1st petitioner being the next friend of the 2nd petitioner for meeting those. Rs.15,000/- was directed by the impugned order to be deposited in recurring deposit in the name of the minor child till his attainment of the age of majority, and therefore, the said sum is only aimed specifically to meet the needs in future, after attaining the age of majority of the child and cannot be termed as maintenance. According to the learned Senior Counsel, since Rs.10,000/- is ordered to be released to the next friend, that alone is meant to meet the day to day requirements of the child and will come within the ambit of maintenance as defined under Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956. According to the learned senior counsel, Rs.15,000/- being a sum meant to be kept in recurring deposit and liable to be withdrawn only on attainment of age of majority by the child to meet his future prospects is something granted over and above the amount required for his maintenance and therefore, the impugned order directing to pay Rs.10,000/- alone needs to be maintained and the direction to deposit Rs.15,000/- is only to be set aside. According to the learned Senior Counsel the term 'maintenance' does not take within its scope future prospects.
11. The learned Senior Counsel has also invited this Court's attention to Ext.P5 receipts available on record as evidence of the petitioners to contend that annual educational expenses for the child at Holy Trinity School, Palakkad, where the child is pursuing with his education could be satisfactorily met with Rs.5,000/- agreed by the respondent to be paid monthly. According to the learned Senior Counsel, the child being healthy and not proved as suffering from any ailments, is not in requirement of money towards treatment.
12. The learned Senior Counsel has urged further that the respondent was always willing to look after the 1st petitioner and the child but the 1st petitioner on the premise that the cold weather is highly unsuitable to her health and it caused her to be sick, left Germany alongwith the child. According to her, the illness and incapacity projected are false stories and she preferred to stay back at her home town solely for the sake of attending her job in a bank which she misrepresented to the respondent as abandoned. According to the learned Senior Counsel, the eagerness of the respondent to get the petitioners in company and willingness to maintain them are well disclosed from Exts.P7 to P9, the E-mail conversations admittedly made by them.
13. According to the learned Senior Counsel, on account of her passion for job, the 1st petitioner even left the child with her parents at Palakkad. The learned Senior Counsel has also urged for a reduction of the monthly maintenance ordered for the reason that the respondent was getting only 1650 Euros equivalent to Rs.1.25 lakhs per month. That apart, it is urged that respondent's Visa for Germany also expired at the relevant time. According to her, the claim of the 1st petitioner that the respondent was getting a monthly income of Rs.5,00,000/- having not been proved by producing cogent materials on her own or by causing those to be produced by the respondent. Admittedly, the respondent was employed abroad and monthly income he was getting from his job is Rs.1.25 lakhs. Whether it is the gross income or net income is not stated by him when examined as DW2. According to the learned Senior Counsel the Family Court is highly unjustified in the above context in ordering a lumpsum of Rs.25,000/- as monthly maintenance. According to the learned Senior Counsel, the amount ordered as monthly maintenance must have nexus to and can only be a sum proportionate to the monthly income of the respondent.
14. It is contended that Exts.P2 and P3 incorporate only the salary particulars of the respondent for the year 2009 and the Family Court has gone wrong in placing reliance on it without applying it's mind to it's relevancy at the relevant time. According to her, the factum that the global recession occurred in the years followed has it's own impact in reduction of the salary of Software Engineers is overlooked by the Family Court while ordering monthly maintenance at the rate of Rs.25,000/-. According to her, on account of the recession, the respondent was constrained to compromise with the job he was holding at the relevant time having only a monthly salary of 1650 Euros. According to her, the Family Court ought not to have drawn from the evidence on record and observed in Paragraph 11 of the impugned order that the salary of the respondent, “at any rate will be between 3 to 5 lakhs”. According to the learned Senior Counsel, the Family Court has fixed the monthly maintenance payable as Rs.25,000/- based on surmises and conjectures and is absolutely unjustified in doing so. According to the learned Senior Counsel, without any cogent basis, the Family Court has also observed in Paragraph 11 that evenif half of the salary of the respondent is kept apart for meeting the expenses for his stay and other social security measures, the respondent will save at least 1.50 lakhs to 2.50 lakhs per month. According to the learned Senior Counsel, the observations as above made by the Family Court in the impugned order being devoid of basis are only to be discarded.
15. According to the learned Senior Counsel, the respondent as DW2 has stated that he was getting only 1.25 lakhs as salary and as it stands uncontroverted, the Family Court ought to have relied on that while fixing the monthly maintenance payable to the child. According to the learned Senior Counsel, the Family Court ought to have borne in mind, the version of the respondent as DW2 that a man living single at Germany has to pay tax at a higher rate than a man living with his family there and therefore on account of the reluctance of the 1st petitioner to join him at Germany he was constrained to pay huge amount towards tax. According to the learned Senior Counsel, Family Court failed to advert to the factum despite being borne out from the evidence on record.
16. According to the learned Senior Counsel in the context wherein evidence discloses that the respondent had resigned his contract with Wipro as early as in 2014 and the visa period is probable to expire in the current year, the Family Court ought to have passed an order fixing the monthly maintenance payable as Rs.10,000/- and in due consideration of the fact that the 1st petitioner is also profitably employed, issued a direction to the respondent to pay a proportionate sum of Rs.5,000/- towards maintenance of the child. The learned counsel urged that the wife when proved as employed in UCO Bank with an attractive salary is also bound to contribute towards maintenance of the child a sum proportionate to her monthly income. To substantiate the above contention, the learned Senior Counsel has also relied on Padmja Sharma vs. Ratan Lal Sharma [(2000) 4 SCC 266], where the Apex Court had held that the monthly maintenance enhanced shall be borne by the parents of the child who are well placed with monthly income.
17. Smt. Gisa Susan Thomas, the learned counsel for petitioners contended on the contrary that as established by the evidence on record, the 1st petitioner had left Germany totally due to her incapacity to withstand the chilled climate there. According to her, the respondent was well aware of the health condition of the 1st petitioner and only pretends to be ignorant of it while aiming to accuse her for desertion without a just and valid reason.
18. The learned counsel has also contended that though it is admitted by the respondent that he was getting only Rs.1,25,000/- as monthly income at the relevant time, convincing materials supportive of that are not made part of the record forming evidence. According to her, the visa held by the respondent is also not produced and marked in evidence to substantiate that the period of the same is due to expire on April 2020. According to her, Exts.P2 and P3 are materials to establish that the respondent had an attractive salary at his home town in the year 2009 and if the salary offered at Germany was low and not attractive compared to the one he was getting from his hometown, he would not have opted for that. According to her, the better prospects alone was the reason that compelled him to migrate to Germany and continue to work there till date. According to her, since the respondent failed to produce materials to convince the Family Court about his monthly income of 1.25 lakhs as admitted by him, the court has every reason to infer from the circumstances that he may be getting more than that as salary. The inference possible to be drawn in the context was that a document if produced by the respondent would only prove to the contrary that his salary at the relevant time is more than 1.25 lakhs. According to her, the Family Court had observed in the impugned order in the above context that he was getting a salary between 3 to 5 lakhs monthly. According to her, the Family Court is perfectly justified in drawing such an inference and observing so in the impugned order. The learned counsel urged that the sum ordered as monthly maintenance being just and reasonable is only to be maintained.
19. According to the learned counsel, the 1st petitioner has fairly conceded her employment as Manager in UCO Bank at the relevant time. Ext.P4 produced by her discloses her gross salary as well as net salary obtained during the year 2019 respectively as Rs.64,150.97 and Rs.51,120.65. Admittedly, the minor child is with her parents at Palakkad in view of the transfer of her job to Ernakulam. According to the learned counsel, the reason that the mother of the child is well placed with attractive salary will not deprive the child from his entitlement to get maintenance at a reasonable rate from the respondent.
20. The learned counsel has also contended that the minor child is entitled to live in accordance with the status of living of his father which he had enjoyed while being in his company. According to her, even if the father is proved as earning only a sum lesser than that was earned by him during their stay together, that will not absolve him from paying maintenance to the child in tune with his social and financial status, once his health condition is not established as unsatisfactory on account of some ailment to which he was subjected to.
21. According to the learned counsel, materials to convince that the respondent has lost his job at present being not available to this Court, the argument advanced on its basis is only to be discarded. The learned counsel has also relied on some rulings to fortify her arguments. In Bhuvan Mohan Singh v. Meena and others [2014 KHC 4455 = AIR 2014 SC 2875] the scope and object of Section 125 Cr.P.C are discussed with by the Apex Court. It was a case where the deserted wife was the claimant for maintenance in an application filed under Section 125 Cr.P.C before the Family Court. Rs.6,000/- each was claimed as monthly maintenance to herself and the minor child but the Family Court has confined it's award to Rs.2,500/- and Rs.1,500/- respectively and directed it to be paid from the date of the order. In the Criminal Revision preferred by the husband, the High Court confirmed the grant of maintenance by the Family Court, but, issued a direction to pay the same from the date of the application. Challenging the order, the husband filed appeal before the Supreme Court which culminated in concurrence with the findings of the High Court. The Apex Court has held in the judgment while dismissing the appeal that a wife is entitled in law to lead a life in the same status as she had lived in the house of her husband and that it is the sacrosanct duty of the husband to render financial support to her evenif he stopped to earn reasonably, by resorting to excess labour, provided he is able bodied.
22. Vinny Parmvir Parmar v. Parmvir Parmar [2011 KHC 4627 = AIR 2011 SC 2748] has been relied on by the learned counsel to convince that while granting maintenance, the court must fix such sum sufficient to enable her to live in reasonable comfort in tune with the status and mode of life she used to live with her husband.
23. The dictum of the Apex Court in Reema Salkan v. Sumer Singh Salkan (AIR 2018 SC 4606) was relied on by the learned counsel to strengthen her argument that the court is justified in rejecting the plea of inability of the husband to pay maintenance when it is established that the husband is highly qualified and able-bodied.
24. Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy (2017 (2) KHC 606 = AIR 2017 SC 2383) has also been relied on by the learned counsel to contend that permanent alimony awarded to the wife must be befitting to the status of the parties and the capacity of the spouse to pay maintenance. The learned counsel has drawn this Court's attention also to the law settled by the Apex Court in the case that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the wife.
25. The ratio in Abraham K.J and another v. Mariyamma Itty and others [2016 (3) KHC 718] was relied on by the learned counsel to contend that the rule that burden rests on the person who makes the affirmative allegation is not an all pervasive rule and that burden can also be on the person who has a negative assertion to make in some cases. The dictum laid by the Apex Court in the case that under Section 114 Illustration (g) the Court has a vested discretion in the matter of drawing or not drawing adverse inference, depending on the facts and circumstances in each case.
26. Attention was also invited by the learned counsel to Syamala and Another v. Salim [2019 (1) KHC 414] to rest her contention that the employment of the mother or her ability to sustain the livelihood of a minor child with her earnings cannot be a justifiable reason to decline to pass an order directing the father to pay maintenance to the child. A Single Bench of this Court has also observed in the case that the father has legal as well as moral duty to maintain his child.
27. Raising contentions as above and relying on the dictums above to rest those it is urged by the learned counsel that the order under challenge is only to be confirmed.
28. Admittedly, the M.C was filed after filing of an application seeking divorce by the respondent before Family Court, Palakkad. Though an attempt was made to establish that maintenance was sought even prior to the filing of the M.C on hand and records establishing those are claimed as available with her, those were not produced. Therefore, it is clear that maintenance was sought from the respondent for the first time after filing of a petition seeking divorce by the latter. Similarly medical records are also not made available in evidence to substantiate her plea that the child was ill and was advised surgery as part of treatment. Despite putting a suggestion to PW1 that the above claims are false ones, the respondent did not also take measures to procure any materials from her to support the suggestion.
29. Admittedly no document is produced to prove that the respondent was having Rs.5,00,000/- as monthly salary. Admittedly Exts.P7 to P9 mails had been sent in the mail IDs of each of them and it is disclosed therefrom that demands were made severally by the respondent to the 1st petitioner to join him at Germany and reluctance of the 1st petitioner to join him due to health issues. Eventhough stated to have ailments like, arthritis, Raymonds Syndrome, Hashimotos Thyroiditis, Severe Sinusitis and Heavy menorrhagia, the only medical document made available to the Court is relating to Thyroiditis. Admittedly Ext.P1 pertains to the treatment undergone by the 1st petitioner during her stay at Germany, with the respondent. Exts.P2 and P3 are pertaining to the details of job of the respondent prior to his marriage with the 1st petitioner. Admittedly of PW1 evenafter marriage, the same job was continued by the respondent. M.C being filed in the year 2019 Exts.P2 & P3 relating to a period prior to that do not have any relevance while the maintenance payable is considered.
30. Health issues were projected by PW1 as the reason for her to avoid staying at Germany in the company of the respondent. Admittedly, the job at Germany was abandoned by the respondent and stayed in India from June, 2018 till January 2019 without any job here.
31. Admittedly PW1 was employed at Palakkad and lateron got transferred to Ernakulam. Even according to her, she had no direct knowledge about the salary of respondent but only hearsay from respondent's father that he was getting Rs.5,00,000/- as salary.
32. The respondent tendered oral evidence as DW2 and his brother as his Power of Attorney Holder tendered oral evidence on his behalf as DW1. Admittedly, the respondent was working at Wipro at the relevant time of his marriage with the 1st petitioner. At the relevant time when DW1 was examined before the Family Court, the respondent was employed in a private IT firm at Germany. According to DW1, his brother had high pressure, cholesterol and severe pain in head and those have been originated from the mental strain caused by the desertion of the 1st petitioner and had been under medication continuously for four months in the year 2018.
33. According to DW1, the respondent is prepared to continue payment of maintenance at the monthly rate of Rs.5,000/- as ordered by this Court when a challenge was raised against the interim maintenance ordered by the Family Court. In addition to the facts sworn to in the proof affidavit, he has orally stated when examined in chief that an E-mail communication was obtained from the respondent intimating his preparedness to take the child to Germany and to maintain him if the 1st petitioner is unable to maintain him with the maintenance of Rs.5,000/- paid by him regularly. The E-mail communication is produced and marked as Ext.D2. He has also stated to have knowledge about the flat owned and possessed by the respondent at Trinity and leasing of it for a monthly rent.
34. Though he pleaded ignorance about the rent obtained from his brother's flat currently, he has stated that originally it was Rs.16,500/- per month. He has further stated that there is a likelihood of it being enhanced now by Rs.500/-. When confronted with Ext.P3, DW1 has stated that at the relevant time when the respondent joined Wipro in the year 2009, his salary was Rs.75,000/-. The conditions of his employment have been described by the respondent while Ext.P9 mail has been sent to the 1st petitioner. According to DW1, he is not acquainted of the rent obtained for the flat belonging to the respondent at present but has gone to the extent of stating that he was told by the respondent to utilise half of the same towards household expenses.
35. After examining his own brother and Power of Attorney Holder as DW1, respondent himself tendered oral evidence as DW2. According to him, he was getting only a salary of 1.25 lakhs and out of that house rent, tax, mandatory social security and health insurance were paid and from the balance amount, his own expenses which takes in food, transportation, clothing and other miscellaneous items are met with. According to him, the living standard at Germany is ten times higher than that in India and with the income obtained he has also to look after his aged parents and to pay the dues towards the loan taken for construction of a house at Palakkad. According to him, the needs of the child to be meted out are not specifically pleaded in the M.C. According to him, he is prepared to pay Rs.5,000/- as monthly maintenance to the minor child as directed by this Court in O.P.(Crl.) No.183/2019 preferred by him against the order of the Family Court directing to pay interim maintenance. According to him, the 1st petitioner who has been proved as employed and earning Rs.80,000/- is also equally responsible to maintain the child. During cross examination DW2 has conceded that he is working as Engineer (Mavenir Systems) in Germany. According to him, primarily, he was working on contract basis till November, 2015 and thereafter, permanently. Marking of the documents were opposed by the learned counsel for the respondent for valid reasons that some of those are only photocopies and some others are required by law to be marked through its signatories. Despite the opposition raised, the documents were found marked and received in evidence as Exts.P1 to P4. It is true that Ext.P1 is copy of a medical document, contents of which was admitted by the respondent as printed in German language. In view of the name of the 1st petitioner printed therein it can be taken to have issued based on the medical consultation she had at Germany. Though the respondent who was confronted with the document has stated to have lack of information about it, has admitted in cross examination that his wife, the 1st petitioner was taken to the hospital during her stay at Germany once for blood test to diagnose thyroid. In that context, there is no reason to discard Ext.P1. The contention of the 1st petitioner that due to the extreme cold weather at Germany, she has become ill and therefore, was reluctant to go there again can be taken as true. Therefore, the stay of the 1st petitioner away from the respondent is justified for a valid reason. When DW2 was confronted with Ext.P3, he had admitted it as an office letter issued in the year 2009 from Wipro during the currency of his employment there. The signature found in the 7th page of Ext.P3 is also admitted by DW2. Therefore, there is every reason to treat Ext.P3 as a relevant document and on it's basis, the salary earned by the respondent from Wipro in the year 2009 can be taken as Rs.75,000/-. According to him, on expiry of the period of the project engaged with Wipro locally, he has gone to Germany as directed by the Company. According to him, since a permanent job was offered by a different company, he had opted it and shifted thereto immediately on expiration of the period of his contract with Wipro.
36. According to DW2, passion of the 1st petitioner for employment with UCO Bank, Ernakulam stands against their stay together at Germany and therefore, he had demanded her to resign the same. According to him, his financial condition was stable and satisfactory and it does not demand the 1st petitioner also to work and earn on her own for sustenance of the family.
37. Admittedly, the 1st petitioner was taken to Germany for a period of 90 days on entry Visa, which according to the respondent, could be extended further. He denied to have knowledge about the illness of the 1st petitioner but when confronted with the facts sworn to in that regard in the affidavit filed, he has conceded that. DW2 has also admitted that a flat situated at Kakkanad and owned by him is rented out. He has also identified the mail IDs in Exts.D1 and D2 as his own and that of the 1st petitioner. It is seen from Exts.D1 and D2 that both parties while sending mails had discussions about the ailment of the child and the surgery proposed by the medical practitioner as part of his treatment. Despite admitting that mail IDs through which Exts.D1 and D2 communications have been sent as their own, it is urged that the informations transpired from the 1st petitioner regarding the illness of the child and the operation proposed are false. DW2 has stated during examination that the expenses incurred by the 1st petitioner for educating the child is evidenced from Ext.P5 and Rs.5,000/- offered by him is sufficient to meet those.
38. From the above discussion, it is amply clear that evidence is not forthcoming from either parties to establish the rival claims regarding the monthly earnings of the respondent. It is true that from Ext.P3, the monthly salary of the respondent obtained from Wipro in the year 2009 is found as Rs.75,000/-. The respondent as DW2 has also conceded that. It is also evidenced that the respondent was working at Wipro as Engineer. Therefore, there cannot be any dispute on the educational qualification of the respondent to work as an Engineer or in other allied suitable posts. Admittedly, the company had sent him to Germany considering his skill and efficiency to work there. It was only on contract basis. However, evenafter expiry of the contract period he opted to stay back at Germany to work and earn. According to him, the offer of salary from his employer at present is only a sum lesser than that was obtained by him from Wipro in his home town. 1st petitioner who has pleaded in the M.C that the respondent is getting Rs.5,00,000/- from his job abroad failed to adduce any evidence to establish the same. Similarly, the respondent who has admitted that he was getting only Rs.1,25,000/- as salary at the relevant time of consideration of the M.C has also failed to produce materials supportive of his contention, which he has easy access to. While sending mails, the respondent has conveyed to the 1st petitioner that he has sufficient income to maintain herself and the child and his financial status then would not demand the 1st petitioner also to work and earn independent income for the family's sustenance. According to him, he could maintain his family decently with his income if the 1st petitioner and the child join him at Germany to stay together.
39. The respondent as DW2 when confronted with the authenticity of his claim of earnings at the relevant time has responded that a relevant document in that regard would be produced, if directed. When an assertion is made by the respondent regarding his salary at the relevant time, it is his bounden duty to produce cogent materials to evidence and establish that and on his failure to produce one such, undoubtedly, a space will be left open for the court to draw an adverse inference that his monthly income is not as claimed by him and a document if produced by her would act against and to her prejudice. Therefore, there is every reason for the court to infer that the respondent was getting salary more than Rs.1,25,000/- at the relevant time. But, a quantification of the salary as done by the Family Court is totally impermissible without any data available in evidence.
40. At the very same time when he was confronted with his capacity to maintain the child, he has gone to the extent of stating that the monthly income of Rs.1,25,000/- is highly insufficient to meet even his own basic requirements. According to him, the requirements to be meted out are payments towards tax, social security and health insurance, health issues of himself and maintenance of his aged parents, loan arrears and day to day expenses of livelihood.
41. Therefore, the respondent is found to have taken dual stand that he has income enough to maintain the 1st petitioner and the child if they join him at Germany and also that his income is insufficient to pay maintenance to the child, who is living separated from him at his home town. DW2 has also stated during cross examination that Rs.5,000/- offered by him to be paid as monthly maintenance is sufficient to meet the educational requirements of the child as disclosed from Ext.P5.
42. Ext.P5 only discloses the fee paid by the 1st petitioner at the School, wherein the 2nd petitioner is pursuing with his education. Apart from education, other provisions like food, dress, toys, medication, tuition, transportation and other miscellaneous items are also required for the growth of the 2nd petitioner as a proper person, who at the relevant time was only aged 5 years.
43. As rightly pointed out by the learned Senior Counsel, Section 125 Cr.P.C does not provide for definition of the term “maintenance”. It only deals with the circumstances in which maintenance is payable, who are entitled to get the same and the circumstances, which would deter the court from granting maintenance.
44. The learned Senior Counsel had invited this Court's attention to the definition of “maintenance” as incorporated under Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, which is extracted supra. The question relevant for consideration in the context is whether it is appropriate to borrow the said definition for the purpose of Section 125 Cr.P.C. The Apex Court has held in Padmja Sharma supra;
“Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Act are to be read in conjunction with one another and interpreted accordingly. We can, therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'.
45. Therefore the definition as contained in Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 can be drawn to the context on hand to have an idea of its meaning. The term 'maintenance' is not actually defined under the Hindu Adoptions and Maintenance Act, 1956. Section 3(b)only narrates the provisions inclusive within the term maintenance. It is pertinent to note that the term takes within it, provision for food, clothing, residence, education, medical attendance and treatment in all cases and particularly in the case of an un-married daughter, in addition to the above, the reasonable expenses of and incident to her marriage.
46. Therefore, it is clear from Section 3(b) of the said Act that the term 'maintenance' will take within it's purview, not only expenses for education, but also expenses for food, clothing, residence, medical attendance and treatment of the party seeking maintenance. When DW2 states that Rs.5,000/- offered by him to be paid as maintenance is sufficient to meet the educational expenses of the child, as disclosed from Ext.P5, in a way he admits that the said sum is insufficient to meet the provisions other than education as included under the term 'maintenance'.
47. This Court has already drawn from a scrutiny of the evidence available in the M.C that the Family Court was justified in drawing adverse inference against the claim of the respondent that he was drawing monthly income more than Rs.1,25,000/-. But, the Family Court has made an observation in the impugned order, when documents to prove his monthly salary are not produced by the respondent that at any rate, it will be between 3 and 5 lakhs and also that he will save at least 1 lakhs to 2 lakhs per month after utilising half of his salary to meet the personal expenses like stay and other social security expenses. The Family Court is highly unjustified in making such observation, which undoubtedly requires some cogent materials to base. In the context, the only inference possibly be drawn by the Family Court was that the respondent was drawing monthly income more than the admitted sum of Rs.1,25,000/-.
48. The dictum of the Apex Court in Vinny Parmvir supra ought to have been relied on by the Family Court while quantifying the maintenance payable. The Apex Court while dealing with an appeal preferred by an aggrieved wife seeking for enhancement of Rs.20,000/- ordered to be paid as maintenance to her by the impugned order in an application preferred under Section 25 of the Hindu Marriage Act, 1955, found that ends of justice would only be met with by paying Rs.40,000/- instead of Rs.20,000/-.
49. In that context, the Apex court had observed:
“12.xxxx 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 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 be kept in mind while determining maintenance or permanent alimony.”
50. The Apex court has held in Kalyan Dey Chowdhury supra;
“The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the factors.”
51. It was a case wherein a divorced wife has approached the court in appeal aggrieved by the permanent alimony awarded to her. The Apex court has also found in the case that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the wife.
52. The respondent in the case on hand is already found as having sufficient income to pay maintenance to the minor child born in his blood but occasioned to stay separated from him for no reason of his own.
53. The respondent being an Engineer by profession, placed profitably in a company at Germany, the minor child akin to the wife in Vinny Parmvir and Kalyan Dey Chowdhury supra is also entitled to live in reasonable comfort in tune with the status of the respondent and in the same mode of life he was enjoying while being in the company of him. As conceded by DW2, with Rs.5,000/- offered by him as maintenance the expenses of education as borne out from Ext.P5 alone could be meted out.
54. The decisions cited by the learned counsel for the petitioners assume relevance in the context. It has been held in Vinny Parmvir's case supra that the Court must be vigilant while fixing maintenance, to consider an amount with which she can live in reasonable comfort taking due regard to her status and mode of life while she was in the company of her husband. The dictum laid down by the Apex Court in Shri.Bhagwan Dutt v. Smt.Kamla Devi and Another [1975 (2) SCC 386] referred to in Vinny Parmvir supra being apposite in the context is extracted hereunder :
“10.xxxx 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.”
55. The Hon'ble court has also observed in the case supra that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but consistent with the status of the family. The Hon'ble Court reiterated that the express wordings in Clause (a) of Sub-Section (1) of Section 125 Cr.P.C “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.
56. A wife's claim is not liable to be rejected for the reason that she is employed. The employment of a lady may not in all circumstances provide her sufficient income to sustain a reasonable and comfortable life, in the status in which she had lived while in the company of her husband. Therefore, it is not the job but the sufficiency of the income she will be getting from the job is decisive of determining her entitlement for maintenance. The object of Section 125 Cr.P.C being to prevent vagrancy and destitution, the Apex Court in Sri. Bhagwan Dutt supra has cautioned the Magistrate holding enquiry under the provision to find out, 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 Apex Court has held that 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. The dictum was laid by the Apex Court while considering the maintenance claim of a deserted wife.
57. In the case of a child seeking maintenance under Section 125 Cr.P.C, whether the employment of his mother and her separate earning has any role to play is the crucial question to be considered in the wake of an argument advanced by the learned Senior Counsel on the basis of the dictum in Padmja Sharma supra. The Apex Court has held in an appeal preferred by the deserted wife that it is the obligation of the father to maintain a minor child as that of the mother.
58. The court further held that it is not the law that howsoever affluent the mother may be it is the obligation only of the father to maintain the minor. The dictum is contained in Paragraph 10 of the judgment. The Apex Court had directed the maintenance amount raised in the case to Rs.3000/- per month per child to be born out in the proportion 2:1 by parents, based on their respective earnings.
59. Relying on the above dictum that it was canvassed by the learned Senior Counsel in the case on hand that the mother of the minor child who is an employee of UCO Bank and paid attractively is also equally responsible to maintain him and therefore the amount stands ordered as maintenance is required to be apportioned in proportion to their income as was done by the Apex Court in Padmja Sharma supra.
60. This Court is enlightened on a reading of Padmja Sharma supra in its entirety that a claim was made by the wife for maintenance for the children under Section 26 of the Hindu Marriage Act, 1955 against the husband who had divorced her and in that context the Apex Court has held as follows:
“10. xxxxxx Under Section 18 of the Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her lifetime. This is of course subject to certain conditions with which we are not concerned. Section 20 provides for maintenance of children and aged parents. Under this section a Hindu is bound, during his or her lifetime, to maintain his or her children. A minor child so long as he is a minor can claim maintenance from his or her father or mother. Section 20 is, therefore, to be contrasted with Section 18. Under this section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how (sic howsoever) affluent the mother may be it is the obligation only of the father to maintain the minor.”
61. Section 20 of the Hindu Adoptions and Maintenance Act, 1956 is apposite extraction hereunder to have it distinguished from Section 125 Cr.P.C. Section 20 Reads:
“20. Maintenance of children and aged parents.-(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
Explanation.- In this section "parent' includes a childless stepmother.”
62. The obligation of either Hindu parents to maintain children, legitimate or illegitimate is dealt with in the provision and therefore, the Apex Court has directed the mother, who was employed and paid also, to pay maintenance to the children, in proportion to her income.
63. Whereas Section 125 Cr.P.C speaks only about the obligation of a husband to maintain a wife, legitimate and illegitimate children and aged parents, unable to maintain themselves. The wife, if employed and able to maintain her life reasonably and comfortably is not entitled to get maintenance from her husband. Whereas the claim of a wife, though employed but struggling hard to meet the ends of her life from the meagre earnings obtained from her employment is not liable to be rejected. Therefore, the employment of the wife is not the criteria to distinguish her ability or inability to maintain herself but, the sufficiency of income earned by her to sustain her life reasonably. The law on the point does not demand that for placing a claim for maintenance, the wife must be a destitute. The law is well settled that the claim of an employed wife with meagre income is not liable to be rejected but, it cannot be said to have out of impact or consequence while the quantum payable as maintenance is determined.
64. The claim in the case on hand being made by a deserted wife on behalf of her minor child under Section 125 Cr.P.C, the income of the mother will not have any bearing at all. The child undoubtedly is unable to maintain himself. May be that he is in the custody of a mother employed with attractive salary. It may be that the child is well maintained by the employed mother and all his requirements are meted out reasonably. For the reason, the father cannot evade from his responsibility or seeks for exemption. Section 125 Cr.P
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.C is specific in the matter of casting liability on the father to maintain a child. As in Section 20 of Hindu Adoptions and Maintenance Act, it does not speak about the obligation also of the mother to maintain the child. For the very reason, the dictum cited by the learned Senior Counsel cannot be applied to the context on hand. In Syamala supra it was held by the Single Bench that the mere fact that the mother is employed or that she would be able to maintain the minor child by her earnings cannot be a justifiable reason to deny maintenance to the child. The claim for a modification of the maintenance awarded by the impugned order proportionate to the monthly income earned by the 1st petitioner is not warranted in the context and therefore, is discarded. 65. The respondent having been inferred to have monthly income more than Rs.1,25,000/-, undoubtedly is obliged to pay maintenance to the child reasonably and the child is also entitled for that. As held by the Apex Court in Vinny Parmvir's case supra the amount must have it's bearing on the status of life of the respondent, who was established by evidence as an Engineer by profession and well placed at Germany, with attractive salary. 66. The Family Court has awarded Rs.25,000/- as monthly maintenance to the child vide the order under challenge. Admittedly of respondent also Rs.5,000/- offered by him is sufficient to meet only the educational expenses of the minor child covered by Ext.P5. Ext.P5 only speaks about the tuition fee and other like expenses payable to the school where the child is pursuing with his education. Except the above, provisions for uniform, books and other allied items needed for education, transportation, medication, residence and dress other than uniform, and the like are also included in the term 'maintenance'. The child is picturised in Exts.P7 to P9, the admitted e-mail communications of the parties, as ailed and needy of treatment. But, at the very same time, as held by the Apex Court in Sri. Bhagwan Dutt supra maintenance amount ordered shall not be a sum to permit the child to live in luxury. 67. When viewed in the backdrop of the above dictum, Rs.25,000/- ordered as maintenance by the impugned order undoubtedly is on the higher side. Modification of the sum is warranted and maintaining a balance with the child's entitlement to live in the status of living of his father, this Court is inclined to reduce a sum of Rs.5,000/- from the maintenance ordered to be paid by the impugned order. 68. It is noticed from the impugned order that the Family Court has ordered Rs.10,000/- to be paid directly to the 1st petitioner and the remaining sum of Rs.15,000/- to be deposited in a recurring deposit to be opened by the 1st petitioner for and on behalf of the child, with herself as the nominee. It is pertinent to note that the above direction was issued after arriving at Rs.25,000/- as the sum payable to the minor child as maintenance. Therefore, the Family Court has committed an error and is unjustified in directing a portion of the maintenance amount to be deposited in a recurring deposit and the rest of the amount to be released to the 1st petitioner. After arriving at a sum as maintenance, the Family Court ought not to have issued a direction to keep a portion of the same in recurring deposit to be used for the future prospects of the child on his attainment of age of majority. As meant under Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, with the amount ordered as maintenance, the present needs of the child are to be meted out. By directing to keep the same in deposit the object underlying Section 125 Cr.P.C will not be fulfilled. 69. As held by the Apex Court in Komalam Amma v. Kumara Pillai [2008 (4) KLT 734 (SC)], the concept of maintenance must, therefore, include provision for food, clothing and the like and basic need for roof over the head. The term maintenance therefore contemplates only the requirements of the child in praesenti and will not takes within its purview, a provision for meeting the future prospects. 70. It has been held by the Apex Curt in Ravinder Kumar Sharma V. State of Assam [(1997) 7 SCC 435) that the explanation inserted by the 1976 amendment to Order 41 Rule 22, the Code does not make it obaligatory to file a cross objection against the adverse finding of lower court and that the respondent could attack such finding in its submissions to the appellate forum. The learned counsel for the respondent, has apprised of the above error during the course of argument. Therefore, in view of the above dictum, this Court is perfectly justified in rectifying the error, even though a cross objection has not been filed by the respondent. In the result, revision petition stands allowed. The sum ordered as maintenance is modified and reduced to Rs.20,000/- payable monthly. The order of the Family Court to the extent it directs Rs.15,000/- to be deposited in a recurring deposit to the opened by the 1st petitioner in a Nationalised Bank to be utilised for the future prospects of the 2nd petitioner on attainment of age of majority is set aside. Rs.20,000/- as such shall be released to the 1st petitioner being the custodian and next friend of the minor child, to meet the day to day expenses in life. Rest of the impugned order is maintained.