Safiya Malik

The Calcutta High Court, disposed of a criminal revision petition seeking interim maintenance under Section 125 of the Code of Criminal Procedure. The Single Bench of Justice Subhendu Samanta stated that the petitioner, being financially self-sufficient, was not entitled to interim maintenance at the current stage of proceedings. The Court directed the Magistrate to decide the main maintenance application within six months.

The matter arose from an order dated August 10, 2022, passed by the Learned Judicial Magistrate, 6th Court, Howrah in Miscellaneous Case No. 407 of 2022 under Section 125 Cr.P.C. The petitioner filed the revision application under Section 482 read with Section 401 of the Code of Criminal Procedure, challenging the impugned order which denied her interim maintenance.

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The petitioner asserted that she was the legally wedded wife of the opposite party and alleged that despite having substantial income from business, the opposite party fabricated a narrative to deny her rightful claim. The petitioner’s counsel argued that the Learned Magistrate erred by not considering the affidavit of assets submitted by her and by assuming that the opposite party was burdened with loans, including a car loan, and responsibilities toward his dependent mother.

To substantiate her claims, the petitioner produced income tax returns and related financial documents allegedly showing the substantial income of the opposite party. Relying on precedents, counsel for the petitioner cited Sunita Kachwaha vs. Anil Kachwaha and Ors [(2014) 16 SCC 715] and Shailja and Anr vs. Khobanna [(2018) 12 SCC 199], stating that "merely the income of the wife cannot debar her from getting proper maintenance."

In response, the counsel representing the opposite party contended that the petitioner was gainfully employed before her marriage and continued to have a sufficient and independent source of income, adequate to maintain her lifestyle. It was submitted that "the standard of living which she accustomed prior to her marriage is appropo similar after her marriage." The opposite party argued that the Learned Magistrate rightly declined interim maintenance, noting the petitioner’s financial independence and the respondent’s own liabilities.

Justice Subhendu Samanta examined the judicial reasoning in the context of prior Supreme Court decisions, particularly Rajnish vs. Neha and Anr [(2021) 2 SCC 324], which delineates the framework for determining maintenance.

The judgment recorded that in Rajnish, the Supreme Court directed Magistrates to evaluate affidavits of assets and liabilities submitted by both parties before deciding on maintenance claims. The judgment quoted paragraph 77 and 78 of the Supreme Court judgement:

"The objective of 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 a punishment to the other spouse."

"There is no straitjacket formula for fixing the quantum of maintenance to be awarded."

The Court further quoted the parameters to be considered:

"The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home..."

Justice Samanta observed that the Learned Magistrate had acknowledged the petitioner’s independent income, a fact not denied by the petitioner. He noted that:

"Whether independent earning of the petitioner is sufficient to the status appropo to the respondent can only be considered after taking evidences."

The Court stated that the findings in the impugned order were tentative in nature and not conclusive. It observed:

"From the materials on record it appears that such observation of the Learned Magistrate is not final and it is tentative in nature."

"The petitioner was employed prior to her marriage and now she has a sufficient means of income; so at this juncture she is not entitled to get any interim maintenance."

Justice Samanta concluded that there was no illegality or impropriety in the Magistrate’s decision and recorded:

"There are no reasons to believe that petitioner is not a lady 'unable to maintain herself"

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The Court dismissed the criminal revision and directed:

"The Learned Magistrate to dispose of the main application for maintenance within 06 months from the date of receiving of this order after giving the parties the reasonable opportunity to place their evidences and also after perusing the affidavit of assets and liabilities of the parties."

"I make it clear of the Learned Magistrate concern in passing impugned orders have made some findings those are tentative in nature and that shall not be considered to be a relevant and binding at the stage of final disposal of the impugned application for maintenance."

"CRR disposed of, interim order if any, passed by the Court during the pendency of the CRR is hereby vacated."

Advocates Representing the Parties: 

For the Petitioner: Mr. Pawan Kumar Gupta, Adv. Ms. Sofia Nisar, Adv. Mr. Santanu Sett, Adv.

For the Opposite Party: Mr. Apalak Basu, Public Prosecutor, Ms. Sanghamitra Mridha, Adv.

Case Title: Milky Verma Vs. Sourav Verma & Anr

Case Number: CRR 4312 of 2022

Bench: Justice Subhendu Samanta

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