It must be said right at the very outset that the Punjab and Haryana High Court in a most laudable, learned and landmark judgment titled Khushi @ Samiksha v/s Ankit in Criminal Revision (F) No. 467 of 2017 that was decided finally on 28 February 2020 has made it indubitably clear that the petitioner must approach the Court with clean hands. The petitioner who in this case is the wife had filed criminal case against the husband who was acquitted in the concerned case. The petitioner was also denied maintenance by the lower court and so she approached the Punjab and Haryana High Court. Mr Lekh Raj Sharma is advocate for the petitioner and respondent is in person.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Ms Justice Jaishree Thakur of Punjab and Haryana High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This is a revision that has been filed seeking to challenge the order dated 8.9.2017 passed by the District Judge, Family Court, Gurugram, where by the petition filed by the petitioner for grant of maintenance under Section 125 of the Code of Criminal Procedure has been dismissed.”
To put things in perspective, the Bench then envisages in para 2 while dwelling on the facts of the case stating that, “In brief, the facts that are a marriage was solemnized between the petitioner and the respondent on 6.12.2012 according to Hindu rites and ceremonies at Gurgaon. However, soon after the marriage on account of matrimonial discord, they separated and the petitioner filed a petition under Section 125 of the Code of Criminal Procedure for grant of maintenance at the rate of Rs. 30,000 per month on the ground that she is a house wife and has no source of income to maintain herself, while the respondent herein is working in a multinational company at Delhi and is earning Rs. 60,000 per month.”
As it turned out, the Bench then enunciates in para 3 that, “The petition was contested by the respondent herein by filing written statement, wherein it was alleged that the petitioner earlier also had filed a similar petition under Section 125 of the Code of Criminal Procedure in Delhi Court, which was disposed of by the Principal Judge, Family Court by order dated 27.5.2014 after making certain adverse observations against the petitioner regarding willful and deliberate concealment on her part. It was also pleaded that the respondent had filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights but the petitioner did not join his company and left the respondent without any just and reasonable cause, and therefore, the petitioner is not entitled to any maintenance.”
Be it noted, the Bench then mentions in para 4 that, “In order to establish her claim, the petitioner herself stepped into the witness box as PW1 and by way of affidavit Ex. PW1/A reiterated the averments made in the petition. No documentary evidence was led by the petitioner. On the other hand, the mother of the respondent, namely Alka Mathur, stepped into the witness box as RW1 and by way of affidavit Ex. RW1/A reiterated the averments made in the written statement.”
Most remarkably, the Bench then lays bare in para 5 pointing out that, “The Family Court, after appreciating the evidence brought on record by the respective parties, observed that the petitioner has not come to the Court with clean hand regarding her own earnings. In the cross-examination, she has very candidly admitted that she has a saving bank account in Canara Bank, Rajendra Park, Gurgaon and is also having a PAN card. However, she patently refused to divulge the details of her bank account, which clearly proved that she has an income and if she discloses the same, then she would not be entitled to claim maintenance from the respondent. It was further observed that even the criminal case filed by the petitioner under Section 498-A, IPC against the respondent has culminated into acquittal. While acquitting the respondent, the Trial Court observed that the petitioner herein is habitual of making improvements in her version at each and every step and consequently dismissed the petition. Aggrieved against the order denying her maintenance the present petition has been filed.”
What the Family Court has held cannot be just glossed over. It has exposed the inadequacies and grievous errors which the petitioner committed due to which she loses her right to get maintenance from her husband. Very rightly so.
Needless to say, the Bench then states in para 8 that, “I have heard learned Counsel for the parties and have perused through the documents annexed with the petition as well as produced at the time of arguments.”
As we see, the Bench then stipulates in para 9 stating that, “The sole question that falls for consideration in the instant petition is, whether the petitioner is entitled to maintenance from the respondent despite the fact that a decree of conjugal rights was passed against the petitioner and since she failed to perform her conjugal rights, even a decree of divorce has also been passed against her on account of desertion and cruelty committed by her and whether Section 125(4) of the Code of Criminal Procedure would come into effect, which stipulate that a wife will not be entitled to maintenance if she refuses to live with her husband without any sufficient reason?”
It would be worthwhile to mention that the Bench then notes in para 10 that, “The petitioner herein has approached this Court seeking maintenance under Section 125 Cr.P.C. claiming that she was married to the respondent and is unable to maintain herself. It is submitted that even though there is a decree of divorce but she would still be entitled to receive maintenance. This claim is challenged by the respondent husband on the ground that he has got a decree of divorce from the petitioner on the grounds of cruelty and desertion; that he has been subjected to cruelty as he was falsely implicated by the petitioner in proceedings initiated under Sections 498-A, 406 IPC in which proceedings he stands acquitted; the petitioner has subjected him to a various kinds of litigation and has remained unsuccessful in the same, refused to join his company in proceedings that were initiated under the Domestic Violence Act, 2005, apart from the main argument that she is a person of substantial means as she is running a playway school in the name of ‘Baby Smile Care’.”
It would be of immense significance for one and all to note that while dwelling on the Clause of Section 125 which provides the biggest bulwark to husband against the wife claims for maintenance is then encapsulated in para 12 wherein it is postulated that, “Section 125 of the Code of Criminal Procedure deals with order of maintenance of wife, children and parents. Whereas Sub-section 4 provides that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Section 125(4) of the Code of Criminal Procedure reads as under:
“125(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.””
While sparing a food of thought for the technicalities, the Bench then while referring to the noteworthy judgment titled Dr Swapan Kumar Banerjee v. State of West Bengal, III (2019) DMC 594 (SC) = VIII (2019) SLT 766 = 2019 (4) RCR (Crl.) 628 propounds in para 13 stipulating that, “In the present proceedings the petitioner had filed various litigations against the respondent and has been unsuccessful in all. The respondent had been implicated in the FIR under Sections 498A and 406 IPC in which he and his family members were exonerated by the judgment dated 17.2.2016 and the judgment rendered acquitting the respondent has attained finality. The present application for maintenance was filed in April 2016, after the acquittal and at that point in time too there was no sufficient cause for the petitioner to reside separately from her husband. However, since the divorce has taken place thereafter, and in view of the judgment rendered in Dr Swapan Kumar Banerjee (supra), the petitioner would in normal circumstances have been entitled to receive maintenance. But is she really entitled to?”
Finally and far most significantly, the Bench then concludes by holding aptly in para 14 of this notable judgment that, “The legislature enacted Section 125 CrPC as a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. The claimant has to claim that she/they, be it parents or wife has no means of to support themselves and are entirely dependent of the husband/father/son/daughter. The petitioner herein has failed to establish that she had no source of income, mainly because she failed to disclose the details of her bank account. It has always been the case of the respondent that the petitioner had sufficient means to support herself and was running a playway school. The petitioner while denying the said contention, admitted to having a bank account in Canara Bank and to maintaining a PAN card, but when asked to furnish details did not do so nor sought time to place the relevant document on the record. The Family Court took into account the statement made by her in her cross examination. I do not remember my bank account No. I cannot supply my statement of my bank account. Even otherwise in these proceedings the petitioner has not placed, or sought permission to place on record the details of her bank accounts to reflect that she had no source of income. Once the respondent had taken a specific plea that the petitioner was running a playway school and coupled with her own admission that she is maintaining a bank account and had a PAN card, the petitioner should have adduced evidence to substantiate that she had no source of income. In such a situation, the Family Court rightly came to the conclusion that the petitioner had not approached the court with clean hands and is not entitled to any maintenance.”
All said and done, there can be no gainsaying that the single and biggest inescapable conclusion that can be drawn after having a cursory look at this extremely commendable, cogent, courageous and composed judgment by the Punjab and Haryana High Court is that for the petitioner to be fully eligible to claim maintenance, she has to approach the Court with clean hands. The Chandigarh High Court also had clearly pointed out that otherwise also the petitioner is fully a woman of resources and she is in a position to maintain herself, as held by the Court below as has been stated also in para 7 of this learned judgment. It has to be borne in mind and it certainly merits no reiteration that if she does not disclose the true facts about her own earnings and if it is found during the court proceedings that she has sufficient means to be able to sustain herself then she is definitely not entitled to claim maintenance from her husband or if it is proved that the conditions specified in Section 125(4) which potentially renders women ineligible from getting maintenance are substantially complied with in case of women as that only serves to makes the case of the husband much more stronger. So it definitely cannot be glossed over and which we must certainly note also that Section 125(4) is most important as a potent tool of defence for the husband whenever a woman files a case against him for maintenance! No denying or disputing it!
Sanjeev Sirohi