Avtar Singh vs Jagdeep Kaur

R.C. Khulbe, J

This criminal revision has been preferred against the judgment and order dated 19.11.2011 passed by the Judge, Family Court, Udham Singh Nagar in Misc. Criminal Case No. 100 of 2010, Jagdeep Kaur vs. Avtar Singh, under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as 'the Cr.P.C.'), whereby the learned Judge, Family Court partly allowed the said application of respondent and directed the revisionist to pay maintenance of Rs.2,000/- per month to respondent w.e.f. 11.05.2010 i.e. from the date of making the said application.

Factual matrix of the case is that the respondent-Jagdeep Kaur filled an application under Section 125 of Cr.P.C. with the averments that she got married to the revisionist on 16.02.2001. After the marriage, the revisionist used to harass and torture her for demand of dowry. The revisionist-Avtar Singh has thrown her away to her parental home from the matrimonial home. The revisionist also filed a divorce petition against the respondent, in which it was submitted that the respondent had got no source of livelihood and she was unable to maintain herself, whereas the revisionist has three acres agricultural land, and apart from the agricultural land, the revisionist also has the business of selling the milk and was earning Rs.40,000/- per month. Therefore, the respondent claimed Rs.5,000/- per month for her maintenance from the date of filing the application.

The revisionist filed his objection and submitted that the respondent-Jagdeep Kaur was suffering from Epilepsy before her marriage and also suffering mental illness, due to which, she behaved rudely with her husband and children also. It is also submitted by the respondent that he is poor person and living below the poverty line and unable to maintain the respondent.

After hearing both the parties, the learned Judge family Court, Udham Singh Nagar by its judgment and order dated 19.11.2011 partly allowed the maintenance application of the respondent and awarded Rs.2,000/- per month for maintenance from the date of making the said application i.e. from 11.05.2010.

Feeling aggrieved present revision preferred by the revisionist-Avtar Singh.

On 03.01.2012 this Court stayed the operation of the impugned judgment and order dated 19.11.2011 passed by the Judge Family Court, Udham Singh Nagar, subject to the condition that the revisionist would pay Rs.1500/- instead of 2,000/- to the respondent.

Heard learned counsel for the revisionist and perused the record before this Court.

Section 125 of Code of Criminal Procedure is extracted hereunder:-

"125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

It is admitted fact that the respondent-Jagdeep Kaur is the legally wedded wife of the revisionist-Avtar Singh and it is also admitted that the respondent is living separately in her parental home since 2009. The revisionist has filed his objection paper no. 11-C before the lower court in which he admitted that he dropped the respondent on 26.03.2009 to her parental home and since then she is living there and he was not maintaining her. The respondent in his application and also in her statement categorically stated that she is residing in her parental home due to the harassment caused by the revisionist for demand of dowry.

The only allegation made by the revisionist against the respondent-wife that she was suffering from the disease Epilepsy and she was not mentally fit. The same statement was given by his son PW-2 Rishav Singh, but the revisionist has failed to produce any medical evidence about the disease of epilepsy.

Presuming it that the respondent is suffering from epilepsy and is not mentally fit, in spite of that, it is the duty of the revisionist to provide her the best medical facility.

This Court come to this conclusion that the revisionist did not provide her even the medical facility and thrown away her from the matrimonial home without any sufficient cause. It is very unfortunate that the respondent did not see the face of her children since 2009. From the evidence, it is clear that the respondent is living separately from her husband with sufficient cause.

The learned counsel for the revisionist argued that the revisionist has no means to maintain his wife as he is financially weak and living below the poverty line.

The Hon'ble Apex Court in the case of Shamima Farooqui vs Shahid Khan reported in (2015) 5 SCC 705 held that a wife has actual absolute right of maintenance; husband is not absolved from his obligation to provide maintenance merely on his plea of financial constraints, so long as he is healthy, able-bodied and capable of earning for his own support.

Grant of maintenance to wife has been perceived as a measure of social justice if the husband is physically and mentally sound and in a position to maintain himself, then he is under an obligation to support his wife. He cannot be permitted to plead that he is unable to maintain his wife due to financially constrains and to absolve his wife from the right of maintenance.

The Hon'ble Apex Court in the case of Sunita Kachwaha and Others vs. Anil Kachwaha reported in (2014) 16 SCC 715 held that merely because wife was earning something, would not be a ground to reject her claim for maintenance particularly, when her earnings were not placed on record below.

In this revision, although the revisionist vehemently argued that the respondent has sufficient means to maintain herself but no evidence was produced by the revisionist about her income. A deserted wife has a right to get maintenance within the parameters of Section 125 of Cr.P.C., so that she may live with dignity, as she would have lived in her matrimonial home, so that she can lead a dignified life after her desertion by the husband.

From the perusal of the record it is clear that the revisionist had sufficient means to maintain his wife and it is also proved that the respondent is living separately in her parental home. The revisionist refused to maintain her without any sufficient cause while, the respondent has no means to maintain herself. This Court come to the conclusion that the lower court has passed the impugned maintenance order as per law and there is no irregularity or infirmity found in the impugned order. The findings of lower court are neither perverse nor erroneous, but instead, are based on proper appreciation of evidence on record. Hence the present revision has no force and liable to be dismissed.

Accordingly, the present revision is dismissed. The judgment and order passed by Judge Family Court, Udham Singh Nagar in criminal Misc. application no. 100 of 2010, Jagdeep Kaur vs. Avtar Singh under Section 125 Cr.P.C. is affirmed. The revisionist is directed to make payment of the entire amount of maintenance along with the arrears within two months from today.

Let a copy of this judgment be sent to the Court below for forthwith compliance.