Ballu s/o Lalchand vs State of Madhya Pradesh

The applicant has preferred this criminal revision petition under Section 397(2) & 401 of Cr.P.C. against the order dated 27.8.2014 passed by Principal Judge, Family Court Gwalior in Case No.85/2010, whereby the application filed by the applicant under Section 125 of Cr.P.C. is partly allowed and the non-applicant has been directed to pay the maintenance of Rs.2000/- per month to the applicant.

Briefly stated the facts of the case are that the marriage was solemnized between the parties on 11.05.2003 as per Hindu rituals and custom. The parties reside together for a period of four years. According to the applicant, the non-applicant and his family members were persistently making demand of dowry and were ill-treating her. The behaviour of the non-applicant was cruel towards the applicant and under compelling circumstances, she was forced to live in her parental house. She is unable to maintain herself and she does not have any source of income and she is depending on her parents whereas the applicant is working in private

job and he is earning Rs.15,000/- per month. Accordingly, a prayer was made for a direction to the non-applicant to pay Rs.5,000/- per month as maintenance to the applicant.

The non-applicant denied the allegation made in the application under Section 125 of Cr.P.C. and contended that the applicant is suffering from mental disease and this fact has been suppressed by family members of the applicant before marriage. He has preferred an application under Section 13 of the Hindu Marriage Act for declaration of the marriage null and void which was pending before the family Court, Agra. Therefore the applicant is not entitled to get any amount.

The trial Court after considering the evidence recorded by the parties held that the applicant is earning approximately Rs.5000 to 6000/- per month and he is capable to pay Rs.2,000/- per month as maintenance.

Learned counsel for the applicant has submitted that the maintenance of Rs.2,000/- awarded by the court below is insufficient whereas the non-applicant is earning Rs.15,000/- per month and having the agricultural income and he is capable to pay Rs.5,000/- per month.

As per the non-applicant, the applicant is capable to maintain herself and she is earning around Rs.5000 to 6000/- per month from stitching work whereas he is doing private job in Deepshikha Saree Show Room in Agra as Salesman. He earns only Rs.4,000/- salary per month and out of total amount, he is already paying Rs.1000/- to the applicant in the case of Prevention of Domestic Violence Act.

I have considered the rival contentions of the

parties and perused the record of the court below.

After perusal of the evidence, it reveals that the findings recorded by the court below are in accordance with the evidence led by both the parties and even if the same is examined on the touchstone of contention raised by the counsel for the applicant, it does not warrant any interference, because it is established preposition of law that the application under Section 125 Cr.P.C. is required to lead evidence and submit document for proving the income of the husband in addition to incapacity of wife to maintain herself. In this case even though it is assumed that the present applicant has succeeded in establishing her incapacity to maintain herself, but the primary obligation to prove the income of husband has not been discharged. The Honble Supreme Court in the case of Chaturbhuj v. Seetabai, (2008) 2 SCC 316 has observed in following manner :

"7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself."

From the record of court below it is clear that the applicant has failed to discharge the burden of proving the income of the non-applicant. Accordingly, the present

application deserves to be dismissed being devoid of merits and consequently it is dismissed. Parties to bear their own cost.