S.125 CrPC Maintenance | Magistrate Can't Presume High Income Merely Because Husband Failed To Produce Employment Documents: Gauhati High Court
The Gauhati High Court has held that mere failure of the husband in furnishing documents regarding his employment does not discredit his evidence about his income as stated in statement of assets and liabilities in maintenance proceedings. In doing so the court held that order shifting burden of proof on the husband to establish his income, for determining maintenance to wife, is arbitrary....
The Gauhati High Court has held that mere failure of the husband in furnishing documents regarding his employment does not discredit his evidence about his income as stated in statement of assets and liabilities in maintenance proceedings.
In doing so the court held that order shifting burden of proof on the husband to establish his income, for determining maintenance to wife, is arbitrary.
For context, the Magistrate while granting maintenance to the wife, had held that the husband failed to produce any document relating to his employment nor did he examine the owner of the pharmacy as a witness (where the husband was stated to be working) and had thus failed to establish his employment. Therefore, the magistrate held, husband had withheld his evidence because of which inference can be drawn that he had concealed facts about his income before the Court.
Justice Sanjeev Kumar Sharma observed, “mere failure of the husband to furnish documents regarding his employment, which may or may not exist as he appears to be having informal employment, does not necessarily discredit his evidence, as to his own income, which he has stated to be between Rs 12,000/- to Rs 15,000/- in his statement of assets and liabilities.”
“Under the said circumstances, it was entirely arbitrary on the part of the learned Magistrate to shift the burden of proof upon the 2nd party (husband) to establish that his income per month did not amount to Rs 1,50,000/-or Rs. 75,000/- per month … it was clearly beyond jurisdiction on the part of the Magistrate to have regarded the income of the petitioner as Rs 75,000/- per month, dehors any evidence in this regard and therefore, the aforesaid findings cannot be sustained.” Justice Sharma added.
The respondent-wife had instituted the proceeding claiming maintenance for herself and the minor child born out of the marriage. It was her case that after marriage, she lived with the petitioner-husband and was later driven out of the matrimonial home along with the child. She stated that the husband was engaged in a medicine business and earned about Rs. 1,50,000 per month, while she had no income and was residing at her parental home.
The petitioner-husband, in his written statement, denied the allegations except the marriage and the birth of the child. He stated that the wife had left the matrimonial home on her own and refused to return despite efforts made by him. He further stated that he earned Rs. 400 per day as a private pharmacist and had limited means.
The Magistrate, upon appreciation of evidence, awarded Rs. 12,000 per month to the wife and Rs. 8,000 per month to the child, totalling Rs. 20,000 per month. The challenge in revision was confined to the quantum of maintenance so awarded.
The High Court noted that the wife had failed to adduce any documentary evidence regarding the alleged income of Rs. 1,50,000 per month.
The Court also noted that the husband had disclosed his income as Rs. 12,000 to Rs. 15,000 per month in his statement of assets and liabilities, and there was nothing on record to dislodge the same.
The Court further took note of the fact that in proceedings under the Domestic Violence Act, an amount of Rs. 6,000 per month had already been awarded to the wife and child, and observed that the same had not been adjusted by the Magistrate while granting maintenance under Section 125 CrPC, contrary to law.
Taking the husband's income at Rs. 15,000 per month and considering his liabilities, the Court held, “the respondent/wife and the child are entitled to a total maintenance of Rs. 6,000/- per month, out of which Rs. 2,000/- would be on account of the child. The said amount after adjustment with the maintenance awarded in the proceedings under the DV Act would therefore come to 'NIL'”
Accordingly, the impugned order was modified and the revision petition was allowed.
Case Title: X v. State of Assam & Anr.
Case Number: Crl. Rev. P./307/2024