Anil Bakshi vs Sangeeta

N.K. Gupta, J.—The JMFC, Sehore vide order dated 29.3.2005 in MJC No. 144/2004 had granted a maintenance of Rs. 1200/- per month each to the respondents. In Criminal Revision No. 53 of 2005 the learned Additional Sessions Judge, Sehore vide order dated 13.6.2005 dismissed the revision. Being aggrieved with the aforesaid orders the applicant has preferred the present petition. The facts of the case in short are that the respondents moved an application u/s 125 of Cr.P.C. before the JMFC, Sehore that marriage of the applicant and the respondent Sangeeta took place on 13.7.1992 and the respondent No. 2 was born. Thereafter, the respondent Sangeeta was being harassed for demand of dowry. The applicant demanded a sum of Rs. 25,000/- to purchase a video camera and, thereafter, Sangeeta was ousted where the applicant kept his son with him and therefore, father of the respondent No. 1 Sageeta expired due to such shock. Thereafter, the applicant did not take any care of the respondent No. 1. He entered into a marriage with one Renu R/o. Kanpur. Thereafter, he entered into a third marriage with one Seema. The applicant was earning a sum of Rs. 30,000/- per month from his photo studio and therefore, a maintenance of Rs. 6,000/- was demanded for the respondents.

The applicant in his reply denied all such allegations. He has specifically pleaded that he earns only a sum of Rs. 1,500/- per month. The respondent No. 1 left the house of the applicant on her own and therefore, she executed a contract that she won''t reside with the applicant in future. After keeping silence for eight years, she lodged the maintenance application. Actually, the applicant was deserted by the respondent No. 1. It was also pleaded that the respondent No. 1 is an educated woman who runs a beauty parlour and so she earns sufficient amount for her maintenance.

After considering the evidence adduced by the parties the learned JMFC accepted the application of maintenance and passed an order as mentioned above whereas the revision filed by the applicant was dismissed in toto.

I have heard the learned Counsel for the applicant.

The respondent No. 1 did not appear before this Court at the time of final hearing. Initially Mr. Ajay Gupta, Advocate was appearing for the respondent No. 1. An SPC was also issued to the respondent No. 1 and thereafter, the matter was finally heard. The learned Counsel for the applicant has stated that now the applicant does not challenge the maintenance granted to respondent No. 2 therefore, no guardian ad litem was appointed for the respondent No. 2.

After considering the submissions made by the learned Counsel for the applicant, if the impugned orders passed by both the Courts below are considered then it would be apparent that the applicant obtained a divorce from the respondent No. 1 though the fact of divorce was not available before the trial Court as well as the revisionary Court. Therefore, the fact of divorce shall not be considered because it is a subsequent event and for the subsequent event the applicant is free to move an application before the trial Court to recall the maintenance order passed in favour of the respondent No. 1 on the basis of that subsequent event. At present though it is a case of petition u/s 482 of Cr.P.C. but, this Court is sanding on the shoes of the trial Court and therefore, the evidence led before the trial Court shall only be considered. After considering the evidence adduced by the parties in the trial Court it appears that the applicant is running a photo studio at Sehore. He could not show any reason as to why he was earning a sum of Rs. 1,500/- only by running that photo studio. If his income was low, he could have closed the photo studio and he could have done the job of labourer by which he could get more amount as wages. It would be apparent that the applicant had hidden his income before the Courts below. The witnesses Anil Sharma (DW 1) and Pramod Kumar (DW 2) have concentrated only on the document Exs. D/1 and D/2. Pramod Kumar has accepted that in the studio of the applicant he had a computer to prepare photo and to modify them. Computer is not an equipment which could be purchased in the income of Rs. 1,500/- per month. Hence the testimony of the respondent No. 1 Sangeeta (PW 1) can be accepted that the applicant was earning a sum of Rs. 30,000/- per month. Hence he was competent to pay the maintenance amount.

It was suggested to Sangeeta that she had a Masters degree in Arts and she was doing some job in the Forest Department. However, the applicant could not prove that at the time of filing of the application she was doing any job or she was earning. In the case of the wife capability of her earning is not sufficient to say that she was not entitled for grant of maintenance. Actually earning of the wife should be deducted from her expenditure and her dependency should be counted by her expenditure minus her earning. The applicant could not prove any document to show that the respondent No. 1 was earning anything at the time of filing of the application or thereafter and therefore, if the trial Court found that the expenditure of the respondent No. 1 was Rs. 1,200/- per month then it cannot be said that disproportionate maintenance was granted to the respondent No. 1.

The main contention of the learned Counsel for the applicant is that the respondent No. 1 herself chose not to reside with the applicant and therefore, she could not get any maintenance from the applicant. In support of this contention the learned Counsel for the applicant has placed his reliance upon the various orders passed by the Single Benches of this Court in cases of Kuntibai Vs. Alakhram, ; Kamal Singh Vs. Sunita and Another, and Anil Kachwaha Vs. Smt. Sunita Kachwaha and Others, . In the case of Kunti Bai (supra) it is alleged that if the application of maintenance is filed by the wife with a long delay and she did not have any reason to live separately then maintenance cannot be granted. In the case of Kamal Singh (supra) it is laid that if the husband and wife were residing separately with their consent then one cannot claim for maintenance. Similarly in case of Anil Kachwaha (supra) it is laid that if wife leaves her matrimonial home without any justifiable ground then the claim cannot be entertained.

In the light of the aforesaid orders passed by the various Single Benches of the Court if facts of the present case are considered then it would be apparent that the factum of marriage of the applicant with Renu or Seema could not be proved by the respondent No. 1. It was apparent from the documents Exs. D/1 and D/2 that the respondent No. 1 received the entire Streedhan from the applicant and executed a contract on 30.6.1996. The respondent No. 1 Sangeeta (PW 1) gave an explanation for that document that she was directed to append her signature on that document forcefully because the applicant was not handing over her child. However, if such was the position then it was for the respondent No. 1 to mention such a fact in her maintenance application as to how she received her son back and executed such an agreement in a forceful manner. On the contrary the respondent No. 1 Sangeeta had hidden this fact from the Court in her application.

If she was forced to execute that contract deed then certainly she could lodge an FIR soon after the execution of that contract that such a contract was executed by coercion or she could lodge an application of maintenance soon after that contract. The contract was executed on 30.6.1996 whereas, the respondent No. 1 had lodged the maintenance application on 12.1.2004 i.e. after eight years approximately. For such a long period why she kept silence? This question was not answered by the applicant. The document Ex. D/1 was referred by the applicant in his reply but, the respondent No. 1 did not modify her application to give an explanation in the pleadings and therefore, the statement of the respondent No. 1 that due to coercion she appended the signature on the document appears to be an after thought explanation.

Since the respondent No. 1 kept silence for eight years after execution of the contract it would be apparent that she was the person who wanted to live separately and therefore, she left the house of her husband. If she was ousted by her husband then she would have applied for the custody of her child under the Guardians & Wards Act. It appears that when she heard about the second marriage of the applicant thereafter, she claimed her child.

The respondent No. 1 and her witnesses Mahendra Singh (PW 2) and Mithilesh Verma (PW 3) have stated that there was a demand of a sum of Rs. 25,000/- from the side of the applicant to purchase a video camera. However, Mithilesh Verma, mother of the respondent No. 1 could not deny the fact that entire Streedhan of the respondent No. 1 was returned by the applicant whereas, it was expected from her to deny this specifically. Under such circumstances, it would be apparent that the 51 articles shown in the document Ex. D/2 were returned to the respondent No. 1 after execution of the contract Ex. D/1. A person who returned refrigerator, oven, swinging machine and so many valuable things should be believed that he did not demand any dowry from the respondent No. 1. Under such circumstances, where the respondent No. 1 could not prove that the document Ex. D/1 was not executed by her due to coercion therefore, the execution of document Ex. D/1 should be accepted as a valid document. In that respect Advocate Anil Sharma (DW 2) has verified that the document was notarized and it was accepted by the respondent No. 1 with free consent. Hence, if conduct of the respondent No. 1 is considered then it would be apparent that after execution of the document he complied with the agreement. The respondent No. 1 could not prove that any payment was made by the applicant and thereafter, on harassment she left the house of the applicant. If she would have left the house of the appellant due to harassment, etc. then she should have tried for resolution with the applicant thereafter, however, she did not try to resolve the matter. After leaving the house of the applicant she did not lodge any FIR u/s 498-A of I.P.C.

So far as the second and third marriage of the applicant is concerned those are subsequent events. When the respondent No. 1 left the house of the applicant without any cognate reason then if the applicant entered into second and third marriage subsequently, then it does not create any right in favour of respondent No. 1 to get maintenance on that count. Under such circumstances, in the light of aforesaid orders passed by the various single Benches of this Court it would be apparent that the respondent No. 1 left her matrimonial home on her own and thereafter, she kept silence for eight years and therefore, she did not have any justifiable ground to remain a way from her husband. Therefore, she could not get any maintenance from the applicant. In this context both the Courts below have committed an error of law by passing perverse order in favour of the respondent No. 1.

The learned Counsel for the applicant has submitted at the time of final arguments that he does not want to challenge the maintenance granted to the respondent No. 2 and therefore, no guardian ad litem was appointed for the respondent No. 2. However, the respondent No. 2 is a minor son of the applicant and he was not bound with any agreement. He was entitled to get the maintenance from his father and no condition could be imposed upon him to reside with his father. It is for the applicant to get his custody, if he wants under the Guardian and Wards Act. Under such circumstances, orders relating to grant of maintenance to the respondent No. 2 cannot be interfered. There is no illegality or perversity visible in the orders passed by both the Courts below relating to the respondent No. 2.

On the basis of the aforesaid discussion, the revision filed by the applicant is hereby partly allowed. The order of the trial Court relating to grant of maintenance of Rs. 1,200/- to the respondent No. 2 is hereby set aside. Consequently, the maintenance application u/s 125 of Cr.P.C. filed by the respondent No. 1 is also dismissed whereas the orders relating to grant of maintenance of Rs. 1,200/- per month to the respondent No. 2 is hereby confirmed. No order as to costs. It is also made clear that if any maintenance is given to the respondent No. 1 in compliance to the orders of the Courts below, then such provided maintenance shall not be recoverable back due to this order. Copy of the order be sent to both the Courts below along with their records for information and compliance.