In a pragmatic, progressive and pertinent judgment titled Jyoti @ Gayatri v. Rohit Sharma @ Santosh Sharma in CRL. REV.P. 56/2018 and cited in 2022 LiveLaw (Del) 561 that was reserved on 10 April and then finally pronounced on June 10, 2022, the Delhi High Court has observed that the determination of maintenance in matrimonial disputes depends on the financial status of the husband and the standard of living that the wife was accustomed to in her matrimonial home. The Court was dealing with a criminal revision petition that was filed by a wife seeking enhancement of quantum of maintenance awarded by the Principal Judge, Family Court claiming it to be on the lower side. The Court dismissed this petition since it found no valid reason to do so.
To start with, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Chandra Dhari Singh sets the pitch in motion by first and foremost putting forth in para 1 that, “The instant criminal revision petition has been filed under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C”) by the revisionist seeking enhancement of quantum of maintenance awarded vide Judgment dated 27th November, 2017 passed by learned Principal Judge, Family Court, Central District, Tis Hazari, Delhi (hereinafter “learned Principal Judge”) in MT No. 5861929/2016 claiming it to be on the lower side.”
To put things in perspective, the Bench then while dwelling briefly on the facts of the case envisages in para 2 that, “Brief facts of the case are as follows:
i. The marriage between revisionist and respondent was solemnised on 11th July, 2008 as per the Hindu rites and ceremonies at Delhi. No issue was born from the said wedlock. It is alleged that revisionist was abused, insulted and ill-treated for bringing insufficient dowry by the respondent/husband and his family members. It is further alleged that Respondent is an alcoholic person having affairs with other women. It is also alleged that the respondent and his parents demanded cash amount of Rs. 10 Lacs for supporting the business of the husband/respondent. Since the revisionist failed to bring dowry of Rs. 10 Lacs, she was thrown out of her matrimonial home on 28th October 2008.
ii. The revisionist was totally neglected by the respondent and was unable to maintain herself. She is totally dependent upon her parents. She has filed a petition under Section 125 of the Cr.P.C for her maintenance. Since the respondent started absenting from the proceedings, Court proceeded ex-parte on 11th December 2015.
iii. Vide Judgment dated 27th November 2017, the petition under Section 125 of the Cr.P.C was allowed by the learned Principal Judge, by which the respondent was directed to pay litigation cost of Rs. 11,000/- and maintenance, as follows:
a) Rs. 2,000/- per month from the date of filing of the petition i.e 26th May, 2010 to 25th May, 2015;
b) Rs. 2,500/- per month w.e.f 26th May, 2015 to 27th November, 2017; and
c) Rs, 3,000/- per month w.e.f from 27th November 2017 till such time revisionist gets remarried.”
Needless to say, the Bench then mentions in para 3 that, “Being aggrieved by the inadequate maintenance, awarded by the learned Family Court vide judgment dated 27th November 2017, revisionist has preferred the instant revision petition for the enhancement of the maintenance amount.”
ANALYSIS AND FINDINGS
No doubt, the Bench rightly acknowledges in para 16 that, “It is an admitted fact that marriage between the revisionist and respondent no. 1 was solemnized. But due to some differences between revisionist and respondent no.1, started living separately, pursuant to which revisionist has filed petition under Section 125 of Cr.P.C. The object behind Section 125 of the Cr.P.C is to prevent vagrancy and destitution of wife, minor children and the parents. In the case of Manish Jain Vs. Akanksha Jain, (2017) 15 SCC 801, the Hon’ble Supreme Court has observed as under:
“16. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.””
While citing another relevant case law, the Bench then notes in para 18 that, “In the case of Bharat Hedge vs Shrimati Saroj, (2007) SCC OnLine Del 622, Co-ordinate Bench of this Court has laid down certain factors/guidelines to be considered for determining the maintenance. The relevant paragraphs are as follows:
“8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same 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.””
Most significantly, the Bench then lays bare in para 19 what forms the cornerstone of this learned judgment wherein it is postulated that, “The intent behind granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as punishment to the other spouse. The financial capacity of the husband, his actual income with reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. It is settled law that balance and equity must carefully be drawn between all relevant factors. The test of determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the revisionist was accustomed to in her matrimonial home.”
Be it noted, the Bench then points out in para 21 that, “The plain import of sub-section (1) of Section 127 Cr.P.C is that a provision is made therein for an increase or decrease of the allowance consequent on a change in the circumstances of the parties at the time of the application for alteration of the original order of maintenance. It must be shown that there has been a change in the circumstances of husband or of the wife.”
While citing a very relevant case law, the Bench then states in para 22 that, “In the case of Bhagwan Dutt vs Kamala Devi, (1975) 2 SCC 386, the Hon’ble Supreme Court has held that word “circumstance” as appearing in Section 127 Cr.P.C has been interpreted by Hon’ble Apex Court by observing that circumstances as contemplated in Section 127 (1) Cr.P.C must include financial circumstances and in that view, the inquiry as to the change of circumstances must extend to a change of financial circumstances. The relevant portion is reproduced herein:
“20. There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband, alone, and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in the language of the associate Section 489(1), that the financial resources of the wife are also a relevant consideration in making such a determination. Section 489(1) provides inter alia, that:
“on proof of a change in the circumstances of any person receiving under Section 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit.”
The “circumstances” contemplated by Section 489(1) must include financial circumstances and in that view, the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife.””
While citing an Apex Court ruling, the Bench then observes in para 25 that, “While determining the quantum of maintenance, the Hon’ble Supreme Court in Jasbir Kaur Sehgal v. District Judge Dehradun & Ors., (1997) 7 SCC 7 has held as follows:-
“8. … The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate…””
Most remarkably, the Bench then concedes in para 27 that, “The change of circumstances referred to in sub-section (1) of Section 127 Cr.P.C. is a comprehensive phrase which also includes change of circumstances of husband. The amount of maintenance once fixed under section 125(1) Cr.P.C. is not something which can be taken to be a blanket liability for all times to come. It is subject to variation on both sides. It can be increased or decreased as per the altered circumstances. Further, the circumstances alleged by the revisionist/wife already existed at the time of passing the original maintenance judgment; therefore, proof of such circumstances cannot form the basis for altering the amount of maintenance under sub-section (1) of Section 127 Cr.P.C. In the instant case, there is nothing on record to prove that there has been change in circumstances that would warrant an enhancement in maintenance.”
Quite forthrightly, the Bench then points out in para 28 that, “In the present case, the revisionist submitted that the respondent is man of sufficient means and earning Rs. 82,000/- per month, but she has not placed on record any documents to assess his exact income and to establish that the he is earning such handsome amount of money. Even this Court does not find any material(s) on record to ascertain the exact income of the respondent nor is there any change in circumstances.”
Quite significantly, the Bench then holds in para 29 that, “The revisionist has also not been able to point out any perversity in the impugned judgment dated 27th November 2017. The Court below i.e. learned Principal Judge, while disposing of the petition under Section 125 of the Cr.P.C, has taken into consideration entire facts and documents/materials on record while directing the respondent to pay monthly maintenance of Rs. 2,000/- per month from the date of filing of the petition i.e 26th May, 2010 to 25th May, 2015; Rs. 2,500/- per month w.e.f 26th May, 2015 to 27th November, 2017; and Rs, 3,000/- per month w.e.f from 27th November 2017 till such time revisionist gets remarried and to clear the arrears within one year, in case of default, he shall be liable to pay penal interest @ 18% p.a.”
Most commendably, the Bench then mandates in para 31 that, “Keeping in view the above observations, this Court does not find any cogent reason to interfere with the impugned judgment dated 27th November, 2017 passed by learned Principal Judge, Family Court, since neither there is any illegality, impropriety or error apparent on record nor any change in circumstances.”
As a corollary, the Bench then puts forth in para 32 that, “Accordingly, the instant Criminal Revision Petition is dismissed for the reasons stated above.”
Going ahead, the Bench then holds in para 33 that, “Pending application, if any, also stands disposed of.”
Finally, the Bench then concludes by directing in para 34 that, “The judgment be uploaded on the website forthwith.”
On the whole, this extremely commendable, cogent, composed and convincing judgment by the Delhi High Court makes it absolutely clear that the Court must always consider the financial status of the husband and changed circumstances while determining maintenance in matrimonial disputes. The Delhi High Court also made it crystal clear that the Courts have also to take into account the standard of living that the wife was accustomed to in her matrimonial home. Of course, there can certainly be just no denying or disputing it!
Sanjeev Sirohi, Advocate
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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