REEMA SALKAN versus SUMER SINGH SALKAN

[2018] 12 S.C.R. 350

[2018] 12 S.C.R.

REEMA SALKAN

SUMER SINGH SALKAN

(Criminal Appeal No. 1220 of 2018)

BSEPTEMBER 25, 2018

[DIPAK MISRA, CJI, A.M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Code of Criminal Procedure, 1973 – s.125 – During thependency of the application u/s.125, issue of interim maintenanceCtravelled upto Supreme Court which granted appellant-wifeRs.20,000/- p.m as interim maintenance commencing from 1[st] Nov.2014 – However, Family Court fixed the final maintenance amount@ Rs.10,000/-p.m. starting from 17[th] July, 2003 till 8[th] Dec. 2010 –No maintenance was granted with effect from 8[th] Dec. 2010 –DRevision petition filed by appellant, partly allowed by High Courtdirecting respondent to pay Rs. 9,000/- p.m from 9[th] Dec. 2010onwards – Held: Family Court held that the respondent neglectedto maintain the appellant – Such finding of fact has been upheld bythe High Court – Both the Courts have concurrently found that, inlaw, the respondent was obliged to maintain the appellant – However,Eprinciple invoked by the High Court for determination of monthlymaintenance amount on the basis of notional minimum income ofthe respondent as per current minimum wages in Delhi is untenable– Regard must be had to the living standard of the respondent andhis family, his past conduct in successfully protracting the disposalFof the maintenance petition filed in the year 2003, until 2015;coupled with the fact that specious and unsubstantiated plea wastaken by him that he was unemployed from 2010, despite the factthat he is highly qualified and an able-bodied person; his monthlyincome while working in Canada in the year 2010 was overRs.1,77,364/- – At this distance of time, keeping in mind the spiralingGinflation rate and high cost of living index today, to do completejustice between the parties, respondent shall pay Rs.20,000/- p.mto the appellant with effect from January 2010 and at the rate ofRs.25,000/- per month with effect from 1[st] June, 2018 until furtherorders – Impugned judgment of the High Court modified.

Allowing the appeal, the Court

HELD: 1.1 The Family Court unambiguously held that therespondent neglected to maintain the appellant, for the elaboratereasons recorded in its judgment dated 28[th] January, 2015. Thatfinding of fact was upheld by the High Court. The Family Courthas also found as fact that the appellant was unemployed, thoughshe is an MA in English and holds Post-graduate Diploma inJournalism and Mass Communication and is also Law Graduateenrolled with the Bar Council of Delhi. The High Court has notdisturbed that finding recorded by the Family Court. Resultantly,both the Courts have concurrently found that, in law, therespondent was obliged to maintain the appellant. [Para 9][356-G-H; 357-A-B]

1.2 During the pendency of the maintenance application filedby the appellant on 16[th] July, 2003, the respondent’s father fileda civil suit which, according to the appellant, was intended toprevent attachment of the family property of the respondent fromexecution of the order in her favour passed in the maintenanceproceedings. The suit for declaration filed by the respondent’sfather was dismissed on 30[th] August, 2003, after full-fledgedtrial but to prevent attachment of land/family property in interimmaintenance case, he moved an application for restoration of thesuit. Further, despite the injunction order passed by the DelhiHigh Court dated 28[th] October, 2004, which was operating againstthe respondent, he approached the courts in Canada and obtainedan ex-parte divorce allegedly to escape the liability to pay themaintenance amount and also adopted delaying tactics in theprogress of the subject maintenance proceedings. [Para 12] [357-G-H; 358-A-B]1.3 The High Court took into account all the relevantaspects and justly rejected the plea of the respondent aboutinability to pay maintenance amount to the appellant on the findingthat he was well educated [B.Com, M.A (Economics) & MBAfrom USA] and an able-bodied person. Therefore, it was not opento the respondent to extricate from his liability to maintain hiswife. The view so taken by the High Court is unassailable. [Para13] [358-D-E; 360-F]

1.4 The principle invoked by the High Court fordetermination of monthly maintenance amount payable to the

352SUPREME COURT REPORTS

Aappellant on the basis of notional minimum income of therespondent as per the current minimum wages in Delhi isuntenable. Regard must be had to the living standard of therespondent and his family, his past conduct in successfullyprotracting the disposal of the maintenance petition filed in theyear 2003, until 2015; coupled with the fact that specious andBunsubstantiated plea was taken by him that he is unemployedfrom 2010, despite the fact that he is highly qualified and an able-bodied person; his monthly income while working in Canada inthe year 2010 was over Rs.1,77,364/-; and that Supreme Courtin an earlier Criminal Appeal (where interim maintenance was inCissue) had prima facie found that the cause of justice would besubserved if the appellant is granted an interim maintenance ofRs.20,000/- per month commencing from November 1, 2014. Atthis distance of time, keeping in mind the spiraling inflation rateand high cost of living index today, to do complete justice between

the parties, the respondent shall pay sum of Rs.20,000/- perDmonth to the appellant towards the maintenance amount with effectfrom January 2010 and at the rate of Rs.25,000/- per month witheffect from 1[st] June, 2018 until further orders. The impugnedjudgment of the High Court is accordingly modified in theaforementioned terms. [Paras 15, 16] [361-B-F-G]ECRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1220 of 2018

From the Judgment and Order dated 31.05.2018 of the High Courtof Delhi at New Delhi in Revision Petition (Criminal) No. 204 of 2015

FPetitioner-in-person.

Ms. Malavika Rajkotia, Rajnish Kumar Jha, Advs. for therespondent.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. Leave granted.G

2. This appeal takes exception to the judgment and order passedby the High Court of Delhi at New Delhi dated May 31, 2018 in RevisionPetition (Criminal) No.204 of 2015, whereby the High Court partly allowedthe revision petition preferred by the appellant and was pleased to set

aside the judgment and order dated 28[th] January, 2015 in Petition No.363of 2014, passed by the Judge, Family Courts, North Rohini, Delhi, to thelimited extent of not granting maintenance amount to the appellant/wifefrom 10[th] December, 2010 onwards. The High Court instead directedthe respondent/husband to pay the maintenance amount at the rate ofRs.9,000/- per month from 9[th] December, 2010 onwards to the appellant/wife.

3. There is chequered history of litigation between the parties.Shorn of unnecessary details, the relevant facts for determination of thepresent appeal are that the appellant and the respondent got married on24[th] March, 2002, according to Hindu rites and ceremonies at InfantryHostel, Delhi Cantonment, Delhi. The respondent, being permanentresident of Canada, had assured the appellant that he would take herwith him to Canada on 28[th] March, 2002 on Tourist Visa. However,soon after the marriage, relations between the appellant and therespondent became strained. The respondent, being permanent residentof Canada, returned to Canada without making any arrangements totake the appellant to Canada even on Tourist Visa, as assured. Rather,he caused impediments in issuance of the Tourist Visa to the appellant,by giving an application in writing in that behalf to the CanadianImmigration Department. As relations between the appellant and therespondent became strained, the appellant filed complaint before theWomen Cell against the respondent and her in-laws. On 16[th] July, 2003,she also filed an application under Section 125 of the Code of CriminalProcedure for grant of maintenance of Rs.2 lakh per month from therespondent before the Chief Metropolitan Magistrate, Delhi. Be it notedthat during the pendency of the said application, interim maintenanceamount was fixed, which issue travelled upto this Court by way of CriminalAppeal Nos.2347-2349/2014, which was disposed of by this Court on28[th] October, 2014 on the finding that the cause of justice would besubserved if the appellant was granted sum of Rs.20,000/- per monthas interim maintenance commencing from November 1, 2014. However,for the reasons stated by the Family Court in its judgment dated 28[th]January, 2015, the final maintenance amount was fixed at Rs.10,000/-per month starting from 17[th] July, 2003 till 8[th] December, 2010 and nomaintenance was granted with effect from 8[th] December, 2010. Theapplication for maintenance, filed in 2003, was finally disposed of on 28[th]January, 2015 in the following terms:

A“Relief:

In view of my finding on issue no.1 above the petition u/s 125Cr.P.C. is partly allowed and the respondent is directed to paymaintenance to the petitioner as under:-

1. From the date of filing of the petition i.e. 17.07.2003 till08.12.2010, @ of Rs.10,000/- per month.

2. With effect from 08.12.2010 onwards the petitioner is not entitledto any maintenance and her claim in this respect stands dismissed.

The respondent shall clear off the arrears of maintenance if any,Cwithin three months from the date of order. Any payment madetowards interim maintenance during the pendency of the presentpetition and any maintenance paid for the concurrent period, asper the order passed by any other competent court in any otherproceeding/litigation between the parties, the money alreadydeposited by the orders of the Superior Courts or by the order ofDthe predecessor of this court, by the respondent shall be adjusted,if required. No orders as to costs.

File be consigned to record-room.”

4. Against this decision, the appellant filed revision petition beforethe High Court being Revision Petition (Criminal) No.204 of 2015, whichEhas been partly allowed on the following terms:

“85. Consequently, the impugned order dated 28.01.2015 is set-aside to the extent of non granting the maintenance in favour ofthe petitioner /wife from 09.12.2010 onwards. However, theimpugned maintenance in favour of the petitioner/wife tillF08.12.2010 at the rate of Rs. 10,000/- per month is upheld. Therespondent is directed to pay maintenance amount of Rs.9,000/-per month from 09.12.2010 onwards. Hence, the present revisionpetition is allowed. The arguments of the learned counsel for therespondent and the judgments relied upon by the respondent areGof no help.

86. The present petition is allowed and disposed of in the aboveterms.”

5. The respondent has not filed any independent petition to assailthe judgment of the High Court rather, it is the appellant who has

questioned the correctness of the quantum of maintenance amount asdetermined by the Family Court and the High Court, by filing the presentappeal. As result, the sole question to be decided in the present appealis regarding the quantum of monthly maintenance amount payable bythe respondent to the appellant.

6. According to the appellant, the High Court in the impugnedjudgment has inter alia overlooked the following points while determiningthe monthly maintenance amount payable by the respondent to theappellant:

(i) Order dt. 28.10.2014 passed by this Court in Criminal Appealno.2347-49 of 2014 filed by Appellant against reduction & non-payment of interim maintenance, whereby this Court grantedRs.20,000/- interim maintenance, cannot be reduced as there hasbeen no change in circumstances of parties since then. Rather, itcan only be increased in final maintenance;

(ii) Appellant’s Evidence, Affidavit of Financial Status Exhibitedproves that Respondent owns vast capital assets including 26.50bigha (6.625 hectare) agricultural land in Meerut, UP;

(iii) Respondent [B.Com, MA (Economics) & MBA from USA]has worked in USA, Dubai, Canada for nearly 20 years and hencecan be presumed to be gainfully occupied, fact which he isconcealing, besides having savings, investments, social & medicalsecurity and insurance of Canada Govt.; and

(iv) Respondent’s last disclosed salary for the year 2010, on thebasis whereof quantum could have been calculated. As per thelast disclosed salary of Cad $48,372.34 p.a. (equal to Rs.21,28,368/- @Rs.44 per Cad.$), monthly salary comes to Rs.1,77,364/-. Evenif minimum increase @ 5% per annum is added to salary of baseyear i.e. 2010, Respondent’s monthly salary would be Rs.2,51,800/-. In absence of disclosure, this is reasonable presumption forincrease in salary. On adding Rs.50,000/- per month agriculturalincome, Respondent’s monthly income can be presumed to beRs.3 Lakh.

7. The respondent, on the other hand, has supported the decisionof the High Court but at the same time, by way of counter affidavit filedto oppose this appeal, has urged that the impugned judgment suffersfrom flawed reasoning on the following counts:

(a) The High Court does not deal with the reasoning of appreciationof evidence.

(b) The High Court does not notice that the Family Court, after atrial, has had an opportunity to observe the demeanour of theparties and has commented on it.

(c) In Paragraph 38 of the judgment, the High Court doesn’toverturn the reasoning of the reduction of the interim maintenancefrom Rs.25,000/- (Rupees Twenty Five Thousand Only).

(d) The High Court does not overturn the reasoning that she hasnot established anywhere that she, as lawyer and an admittedlywell educated and competent professional, is unable to maintainherself.

(e) The High Court also noted the scandalous allegations madeby the Petitioner, against the Respondent’s family which wouldreinforce his allegation of the Petitioner’s vindictiveness.

(f) The High Court has noted judgments of various High Courtswherein the principle laid down is that the laws of maintenanceare supposed to support but not enrich; payments cannot continuead-infinitum.

(g) The wife, too, is expected to mitigate her own losses by showingat least some semblance of effort at work and earning.

(h) The maintenance should be in accordance with tenure ofmarriage, meaning thereby that long tenure marriages withchildren or even with just long term investment of time, loss ofearnings and so on can be computed monetarily, but not so 4Fday marriage resulting in 15 year litigation, driven by desirefor vengeance with motive to harass.

8. We have heard the appellant appearing in-person and Ms.Malavika Rajkotia, learned counsel appearing for the respondent.

9. As aforesaid, the sole question is about the quantum of monthlymaintenance amount payable by the respondent to the appellant. In that,the Family Court has unambiguously held that the respondent neglectedto maintain the appellant, for the elaborate reasons recorded in itsjudgment dated 28[th] January, 2015. That finding of fact has been upheldby the High Court vide the impugned judgment. The Family Court has

also found as fact that the appellant was unemployed, though she is anMA in English and holds Post-graduate Diploma in Journalism andMass Communication and is also Law Graduate enrolled with the BarCouncil of Delhi. The High Court has not disturbed that finding recordedby the Family Court. Resultantly, both the Courts have concurrently foundthat, in law, the respondent was obliged to maintain the appellant.

10. The Family Court, however, restricted the liability of therespondent to pay maintenance amount only between 17[th] July, 2003and 8[th] December, 2010, which view did not commend to the High Court.The High Court, instead directed the respondent to pay monthlymaintenance amount to the appellant even after 9[th] December, 2010, butlimited the quantum to Rs.9,000/- per month.

11. The High Court has recognized the fact that the appellant wasnot in position to maintain herself but it restricted the maintenanceamount to Rs.9,000/- per month on the finding that the respondent wasunemployed and had no source of income. However, having found thatthe respondent was well- educated and an able-bodied person, the HighCourt went on to hold that he was liable to maintain his wife. The HighCourt further noted that the respondent had failed to produce any evidenceregarding his unemployment or that he had no source of income.Resultantly, the High Court posed question as to how the respondentwas able to manage his affairs after his return from Canada, since 2010.Therefore, the High Court applied notional income basis to arrive at his(respondent’s) minimum income of Rs.18,332/- as per the currentminimum wages in Delhi, as person possessing qualifications of B.Com.,MA (Eco.) and MBA from Kentucky University, USA, and on that basis,directed the respondent to pay Rs.9,000/-per month to the appellant from9[th] December, 2010 onwards until further orders.12. The manner in which the proceedings, instituted by the appellantunder Section 125 Cr.P.C., have progressed from 2003 leaves much tobe desired. During the pendency of the maintenance application filed bythe appellant on 16[th] July, 2003, the respondent’s father filed civil suitwhich, according to the appellant, was intended to prevent attachmentof the family property of the respondent from execution of the order inher favour passed in the maintenance proceedings. The suit for declarationfiled by the respondent’s father was dismissed on 30[th] August, 2003,after full-fledged trial but to prevent attachment of land/family property

Ain interim maintenance case, he moved an application for restoration ofthe suit. Further, despite the injunction order passed by the Delhi HighCourt dated 28[th] October, 2004, which was operating against therespondent, he approached the courts in Canada and obtained an ex-parte divorce allegedly to escape the liability to pay the maintenanceamount and also adopted delaying tactics in the progress of the subjectBmaintenance proceedings. Furthermore, the Magistrate granted interimmaintenance of Rs.25, 000/- per month from the date of filing of themaintenance petition on the prima facie finding that the respondent’smonthly salary, earned in Canada, was over Rs.1 lakh in the year 2003.That issue was finally resolved by this Court vide order dated 20[th]COctober, 2014 by observing that the cause of justice would be subservedif the appellant was granted sum of Rs.20,000/- per month as an interimmaintenance, commencing from November, 2014. That interimarrangement was continued till the final disposal of the maintenancepetition by the Family Court.

D13. Be that as it may, the High Court took into account all therelevant aspects and justly rejected the plea of the respondent aboutinability to pay maintenance amount to the appellant on the finding thathe was well educated and an able-bodied person. Therefore, it was notopen to the respondent to extricate from his liability to maintain his wife.It would be apposite to advert to the relevant portion of the impugnedEjudgment which reads thus:

“79. The respondent during the cross examination has admittedthat he too is B.Com, M.A.(Eco.) and MBA from KentuckyUniversity, USA; the respondent is Canadian citizen workingwith Sprint Canada and is earning Canadian $(CAD) 29,306.59Fas net Annual Salary. However, he has claimed that he has resignedfrom Sprint Canada on 23.11.2010 and the same has been acceptedon 27.11.2010 and the respondent since then is unemployed andhas got no source of income to maintain himself and his family.

80. In the instant case, the petitioner has filed the case underGSection 125 Cr.P.C., 1973 for grant of maintenance as she doesnot 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 comesfrom extremely respectable family simply denies the same. The

respondent husband in his written statement does not plead thathe is not an able-bodied person nor he is able to prove sufficientearning or income of the petitioner.

81. It is an admitted fact emerging on record that both the partiesgot married as per Hindu Rights and Customs on 24.03.2002 andsince then the petitioner was living with her parents from 10.08.2002onwards, and the parents are under no legal obligation to maintaina married daughter whose husband is living in Canada and havingCanadian citizenship. The plea of the respondent that he does nothave any source of income and he could not maintain the wife isno answer as he is mature and an able bodied person having goodhealth and physique and he can earn enough on the basis of himbeing able bodied to meet the expenses of his wife. In this context,the observation made in Chander Prakash v. Shrimati ShilaRani,AIR 1968 Del 174 by this Court is relevant and reproducedas under:“7.........an able bodied young man has to be presumed to becapable of earning sufficient money so as to be able reasonablyto maintain his wife and child and he cannot be heard to saythat he is not in position to earn enough to be able to maintainthem according to the family standard. It is for such able-bodiedperson to show to the Court cogent grounds for holding that heis unable, for reasons beyond his control, to earn enough todischarge his legal obligation of maintaining his wife and child.”

82. The husband being an able-bodied person is duty bound tomaintain his wife who is unable to maintain herself under thepersonal law arising out of the marital status and is not undercontractual obligation. The following observation of the Apex Courtin Bhuwan Mohan Singh v. Meena,AIR 2014 SC 2875, isrelevant: -

“3.….Be it ingeminated that Section 125 of the Code ofCriminal Procedure (for short “the Code”) was conceived toameliorate the agony, anguish, financial suffering of womanwho left her matrimonial home for the reasons provided in theprovision so that some suitable arrangements can be made bythe court and she can sustain herself and also her children ifthey are with her. The concept of sustenance does not

necessarily mean to lead the life of an animal, feel like anunperson to be thrown away from grace and roam for herbasic maintenance somewhere else. She is entitled in law tolead life in the similar manner as she would have lived in thehouse of her husband. That is where the status and strata comeinto play, and that is where the obligations of the husband, incase of wife, become prominent one. In proceeding ofthis nature, the husband cannot take subterfuges to depriveher of the benefit of living with dignity. Regard being had tothe solemn pledge at the time of marriage and also inconsonance with the statutory law that governs the field, it isthe obligation of the husband to see that the wife does notbecome destitute, beggar. situation is not to be maladroitlycreated where under she is compelled to resign to her fate andthink of life “dust unto dust”. It is totally impermissible. In fact,it is the sacrosanct duty to render the financial support even ifthe husband is required to earn money with physical labour, ifhe is able-bodied. There is no escape route unless there is anorder from the court that the wife is not entitled to getmaintenance from the husband on any legally permissiblegrounds.

(emphasis applied)

83. The respondent’s mere plea that he does not possess anysource of income ipso facto does not absolve himself of his moralduty to maintain his wife in presence of good physique along witheducational qualification.”

The view so taken by the High Court is unassailable. Indeed, theFrespondent has raised plea to question the correctness of the saidview, in the reply affidavit filed in this appeal, but in our opinion, thefinding recorded by the High Court is un-exceptionable.

14. The only question is: whether the quantum of maintenanceamount determined by the High Court is just and proper. The discussionGin respect of this question can be traced only to paragraph 84 of theimpugned judgment which reads thus:

“84. So far, the quantum of maintenance is concerned nothingconsistent is emerging on record to show the specific amountwhich is being earned by the respondent after 2010, however the

husband is legally bound to maintain his wife as per the status ofa respectable family to which he belongs. The husband being able-bodied along with high qualification B.Com, M.A.(Eco) and MBAfrom Kentucky University, USA could earn at least minimum ofRs. 18,332/- as per the current minimum wage in Delhi. Therefore,the petitioner being wife is entitled to Rs. 9,000/- per month from09.12.2010 onwards till further orders.”

15. The principle invoked by the High Court for determination ofmonthly maintenance amount payable to the appellant on the basis ofnotional minimum income of the respondent as per the current minimumwages in Delhi, in our opinion, is untenable. We are of the consideredopinion that regard must be had to the living standard of the respondentand his family, his past conduct in successfully protracting the disposalof the maintenance petition filed in the year 2003, until 2015; coupledwith the fact that specious and unsubstantiated plea has been taken byhim that he is unemployed from 2010, despite the fact that he is highlyqualified and an able-bodied person; his monthly income while workingin Canada in the year 2010 was over Rs.1,77,364/-; and that this Courtin Criminal Appeal Nos.2347-2349/2014 has prima facie found that thecause of justice would be subserved if the appellant is granted an interimmaintenance of Rs.20,000/- per month commencing from November 1,2014. At this distance of time, keeping in mind the spiraling inflation rateand high cost of living index today, to do complete justice between theparties, we are inclined to direct that the respondent shall pay sum ofRs.20,000/- per month to the appellant towards the maintenance amountwith effect from January 2010 and at the rate of Rs.25,000/- per monthwith effect from 1[st] June, 2018 until further orders. We order accordingly.

16. We, therefore, direct the respondent to pay the enhancedmaintenance amount, as determined in terms of this order, to the appellantwithin period of eight weeks from today after duly adjusting the amountalready deposited in Court/paid to the appellant till date. The appellantwill be entitled to forthwith withdraw the maintenance amount depositedby the respondent in Court, if any. The impugned judgment of the HighCourt is accordingly modified in the aforementioned terms.

17. The appeal is allowed in the aforementioned terms.

Divya Pandey

Appeal allowed.