High Court of Himachal Pradesh
Nagender Pal Sharma Vs. Vidya Sharma
MANU/HP/0777/2022
20.06.2022
Criminal
Onus is on the husband to establish that there are sufficient grounds to show that he is unable to discharge his legal obligations for reasons beyond his control
By way of instant criminal revision petition filed under Section 397 of Code of Criminal Procedure, 1973 (CrPC), challenge has been laid to order passed by learned Sessions Judge, whereby criminal revision petition having been filed by the Petitioner came to be disposed of as compromised, whereby the Petitioner herein agreed to pay Rs. 10.00 Lakh to the Respondent as permanent alimony and Respondent also agreed to file a divorce petition in the competent Court of law within a period of three months, the Petitioner agreed to pay Rs. 5.00 Lakh on the date of filing of divorce petition and remaining Rs. 5.00 Lakh at the time of passing of final order. Most importantly, Petitioner stated before learned Court below that in case he fails to pay the aforesaid amount to the respondent, ex parte order passed by learned Additional Chief Judicial Magistrate, regarding monthly maintenance allowance shall come to force.
Though, in the case at hand, Petitioner has claimed that he was compelled/pressurized to enter into compromise but such plea is not substantiated by any material rather, order clearly reveals that during the pendency of the criminal revision filed by the Petitioner, parties of their own volition entered into compromise, whereby petitioner agreed to file petition under Section 13B of the Hindu Marriage Act, 1955 in the competent Court of law, seeking therein divorce by way of mutual consent.
Though, present court finds no illegality and infirmity in the order passed by learned Additional Chief Judicial Magistrate, awarding monthly maintenance to the tune of Rs. 10,000 to the Respondent, but having taken note of the fact that monthly income of the Petitioner is Rs. 21,000, amount of maintenance awarded by learned trial Court appears to be on higher side.
Hon'ble Apex Court in Rajnesh vs. Neha and Ors., has categorically held that the financial situation and liabilities of the non-applicant and higher obligations of Respondent are required to be taken into consideration, while awarding maintenance. No doubt, the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. Since in the case at hand, there is no dispute that the monthly income of the petitioner is Rs. 21,000 and he has two families to support, by no stretch of imagination, order granting maintenance to the tune of Rs. 10,000 can be held to be justifiable.
The petition is disposed of by upholding the order passed by learned Sessions Judge, however, order passed by learned Additional Chief Judicial Magistrate, is modified to the extent that instead of Rs. 10,000, the Petitioner shall be liable to pay monthly maintenance to the respondent at the rate of Rs. 7,000 per month from the date of institution of the petition under Section 125 of CrPC.
Tags : Divorce Mutual consent Maintenance
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