Wonderful judgment: Qualified and able-bodied knife will not be entitled for interim maintenance.
Tag: 1-Judge Bench Decision
Moodududla Srinivas Vs N.Usha Rani on 13 April, 2017
In this Andhra Pradesh High Court judgment, Dr. Justice D Siva Sankara Rao ordered that as no relation exists in the nature of marriage, no maintenance is maintainable in section 125 as well as Domestic Violence Cases.
Kiran Dhar Vs Alok Berman on 14 May, 2014
This Allahabad High Court judgment also clarifies established below legal point in Maintenance case under section 125 of CrPC. It relies on Deoki here.
In the absence of any custom and in absence of any decree for divorce, it cannot be said that marriage between Alok Berman and Smt. Rani was dissolved, which goes to show that Alok Berman was still legally married husband of Smt. Rani, who was, admittedly, alive at the time of marriage of Smt. Kiran Dhar with Alok Berman, and the marriage between them was not annulled as per law.
Further,
26. Section 13 of Hindu Marriage Act clearly requires a petition either by the husband or the wife for dissolving the marriage by decree or divorce on the ground mentioned in Section 13 of Hindu Marriage Act. No other form of divorce has been recognized by Hindu Marriage Act. Annexure 5 is an agreement between Alok Berman and his earlier wife – Smt. Rani in which parties had signed a divorced deed in which they have stated that they are dissolving the marriage by this deed on the conditions mentioned in the deed. Condition no.6 is also very relevant in which she has stated that if either of the parties filed a divorce case in the Court, then another party will give consent to the divorce without making any objection.
27. It is not on record as to whether any suit for divorce was filed by Smt. Rani or not. In absence of any document and decree of divorce by the court, it can safely be presumed that no such application was moved by either of parties before the competent court for dissolution of marriage. In view of this, the only evidence of divorce is the document Annexure 5. This document has not seen the light of day during any divorce proceeding. Hindu Marriage Act does not recognize any divorce of such type. It has also not been averred and proved that there was such custom in the society of parties to recognize such type of divorce.
28. In the absence of any custom and in absence of any decree for divorce, it cannot be said that marriage between Alok Berman and Smt. Rani was dissolved, which goes to show that Alok Berman was still legally married husband of Smt. Rani, who was, admittedly, alive at the time of marriage of Smt. Kiran Dhar with Alok Berman, and the marriage between them was not annulled as per law.
29. In view of Sections 5 (1) and 11 of Hindu Marriage Act and also in view of decision of Apex Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) the marriage between Smt. Kiran Dhar and Alok Berman is void ab initio, and she is not entitled to maintenance.
30. It is also clear from the decision of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) that even if the second wife (Smt. Kiran Dhar) was not aware of first marriage of her husband with another woman, she is not entitled to any maintenance.
Citations: [2015 DMC ALL 2 357], [2014 ALLCC 86 807], [2015 ACR 1 945], [2014 ALR 106 405], [2015 CRIMES ALL 1 607], [2014 SCC ONLINE ALL 15005], [2015 ALL LJ 1 391], [2014 AIC 142 877], [2015 HLR 2 522]
Other Sources:
https://indiankanoon.org/doc/187951850/
https://www.casemine.com/judgement/in/56b492ff607dba348f003b0a
https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=158933
Sanjay Sudhakar Bhosale Vs Khristina on 8 April, 2008
Another judgment this time from Bombay High Court, which says no cruelty proved in maintenance case under section 125 CrPC results in no maintenance to Knife.
This sentence in last para is not appreciable though.
However, the payment of maintenance allowance, if any, during the intervening period, is not refundable by her.
Note: This is how the false case filers are encouraged/supported by Judiciary in India.
Bharat Hegde Vs Saroj Hegde on 24 Apr 2007
Another Key Judgement from Delhi High Court elucidating the judicial principles required to be applied while deciding an Interim Maintenance application under Section 24 of Hindu Marriage Act 1955.
This is a case involving the son of Ex CM of Karnataka State of India, Mr. Rama Krishna Hegde.
Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.
It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.
Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude.
The 11 factors for consideration are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non applicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.
10. The non applicant to defray the cost of litigation.
11. The amount awarded u/s. 125 Cr.PC is adjustable against the amount awarded u/s. 24 of the Act.”
If the capital asset is an industrial property, a coffee plantation, an orchard or any other agricultural holding, there would be a presumption that the said capital asset is yielding some income. It is not presumed to be a dead asset.
But where the law requires a Judge to form an opinion based on a host of primary data, a Judge can formulate an opinion pertaining to the likely income from the capital assets of the husband.
It is a well recognized principle of law that where a person withholds vital information, a presumption arises against him that had he disclosed the information, the same would have been adverse to him.
Citations : 140 (2007) DLT 16
Other Sources :
https://indiankanoon.org/doc/260066/
Rani Sethi Vs Sunil Sethi on 31 Mar 2011
This is a verdict from Delhi High Court dismissing petition of the wife that is filed against the Trial court order to pay maintenance to Husband along with litigation expenses and a car for his usage !!
One should appreciate the detailed dissection made by the Hon’ble Court, of the financial information made available by parties in arriving at the conclusion.
The purpose of section 24 of Hindu Marriage Act is to provide support to a spouse who has no independent source of income and is incapable of maintaining himself/herself. It is trite law that the term “support” is not to be construed in a narrow manner so as to mean bare subsistence. It means that the other spouse, who has no independent source of income, is provided with such maintenance so as to live in a similar status as was enjoyed by them in their matrimonial home. It is the purpose of section 24 that the wife or the husband who has no sufficient source of income for her or his support or for the expenses of the proceedings must be provided with such reasonable sum that strikes equity between the spouses.
The Supreme Court Judgment of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun & Others is available here.
The Delhi High Court judgment of Bharat Hegde v. Saroj Hegde is available here that talks about the 11 factors to be considered an application under section 24 of Hindu Marriage Act.
Index of Maintenance judgments under HMA are here.
