Bhupenda Shinde vs Smt. Hemlata @ Nandini Shinde & Anr

Heard on the question of admission.

With the consent of the parties, the case is heard finally.

This Criminal Revision under Section 397,401 of Cr.P.C. has been filed calling in question the order dated 26-6-2013 passed by 1st Additional Principal

Judge, Indore in M.J.C. No. 457/2010 by which the application filed by the respondents has been allowed and the respondent No.1 has been awarded

Rs.3000/- per month and respondent no.2 has been awarded Rs.1000/- per month by way of maintenance.

The necessary facts for the disposal of the present revision in short are that the respondents filed an application under Section 125 of Cr.P.C. on the

allegations that the respondent no.1 was married to the applicant on 29.4.2008 as per Hindu Rites and Rituals. Sufficient dowry was given at the time

of marriage. For some time after the marriage, the behavior of the applicant and his family members towards the respondent No.1 was good,

however, thereafter they started demanding Rs.5 lacs and also started harassing and beating the respondent no.1, due to non-fulfillment of their

demand of dowry. However, with a hope and belief, that the behavior of the applicant and his family members would improve, She continued to stay in

her matrimonial house. In the meanwhile, the respondent no.1 also gave birth to the respondent no.2. However, the atrocities of the applicant and his

family members continued and ultimately in the month of February, 2010, the respondents were turned out of the matrimonial house because of non-

fulfillment of their demand of dowry. When the applicant went to the police station for lodging the F.I.R., the matter was sent to Parivar Paramarsh

Kendra. The respondent no.1 was forcibly sent to her matrimonial house and when the respondent no.1 went there, again She was beaten and was

abused and was once again ousted from her matrimonial house and the hand of the respondent no.2 was burnt with the help of hot pressure cooker.

Accordingly, She lodged the F.I.R., in the police station Dhar and crime no. 371/2010 was registered against the applicant and his family members.

Thus, it was pleaded that from thereafter, She is residing with her parents along with her one year old daughter. The respondents are unable to

maintain themselves, and the respondent no.1 has no independent source of income, whereas the applicant is earning Rs.10,000/- per month by way of

salary whereas the applicant has agricultural land and the applicant has income from agricultural activities. It was further pleaded that the applicant is

getting an amount of Rs.30,000/-per month by way of rent and interest. Accordingly, a prayer for grant of maintenance @ of Rs.15,000/- per month

was claimed.

The applicant filed his reply and denied the allegations. It was pleaded that only the articles worth Rs.15,000/- were given at the time of marriage,

whereas the family of the applicant had given ornaments worth Rs.90,000/- to the respondent no.1. As the mother of the applicant is an old lady, aged

about 90 years, and since, the respondent no.1 was not interested in looking after her mother-in-law, therefore, She never stayed in her matrimonial

house for long time. She used to go back to her parent’s house very frequently and without the permission of the applicant. It was further pleaded

that one brother of the applicant is residing in Dhar, whereas another brother and elder sister are residing in Indore. One sister is residing along with

the applicant, but She is staying in a separate room and therefore, there is no question of harassment by the family members of the applicant. As the

respondent no.1 is a lady of modern thinking therefore, She was all the time, insisting that the applicant should also shift to Indore, however, as the

applicant was not in a position to leave his mother, therefore, in a preplanned manner, She went to attend the marriage in the family of a relative along

with all of her ornaments, and thereafter, did not bring the ornaments back. On 29-4-2010, the applicant and the respondent no.1 had celebrated their

marriage anniversary, however, the respondent no.1 had already called her father, just one day prior to the marriage anniversary and on the next day,

she came back to Indore and about a month thereafter, She lodged a false report against the applicant on 11-5-2010. The applicant is working as a

salesman and is getting the monthly salary of Rs.1000/- along with the commission and accordingly, the monthly income of the applicant is around

Rs.2000-2500/-. Whereas the respondent no.1 is a literate lady having passed M.Com and is earning Rs. 15,000/- per month by running coaching

classes.

The Trial Court after recording the statements of the parties, allowed the application filed by the respondents and by order dated 26-6-2013 passed in

M.J.C. No. 457/2010, directed the applicant to pay Rs. 3000/- per month to the respondent no.1 and Rs. 1000/-per month to the respondent no.2.

Challenging the order passed by the Court below, it is submitted by the Counsel for the applicant that the Trial Court has failed to prove that the

respondent no.1 is residing separately without any sufficient cause, and the Court below has also wrongly assessed the income of the applicant. The

Trial Court should not have added the income of the mother of the applicant.

Per contra, it is submitted by the counsel for the respondents, that the applicant was prosecuted for offence under Section 498-A of I.P.C. and has

been convicted. Thus, it is clear that the applicant had treated the respondent no.1 with cruelty. Further merely because the husband claims to have

meager income, would not be sufficient to hold that the wife and the child are either not entitled for maintenance or they are entitled for meager

amount only.

Heard, the learned Counsel for the parties.

During arguments, it has been admitted by the Counsel for the applicant, that the applicant was prosecuted for offence under Section 498-A of I.P.C.

and has been convicted but submitted that since, a criminal appeal is pending, therefore, it cannot be said that the conviction of the applicant has

attained finality.

So far as the question of pendency of the Criminal Appeal against the conviction of the applicant is concerned, suffice it to say, that in case the

applicant is acquitted and if he is of the view that his acquittal will have some bearing on the entitlement of the respondent no.1 to receive the

maintenance, then he can always file an application under Section 127 of Cr.P.C. for alteration of maintenance, but at this stage, the conviction of the

applicant cannot be ignored, merely on the ground that the criminal appeal against the judgment of conviction is pending.

It is next contended by the Counsel for the applicant, that the respondent no.1 had given her wrong residential address and therefore, She is not

entitled for maintenance amount. It is submitted that when the notice of the present revision was issued by this Court, then a report was received that

the respondent no.1 is not residing at the given address for the last more than 10 years and only after publication, the respondent no.1 could be served

and accordingly She is not entitled for maintenance amount. To buttress the contentions, the Counsel for the applicant has relied upon an order passed

by the Delhi High Court reported in the case of Kamla Vs. Rati Ram, reported in 2013 SCC online Del 344.

I have considered the submissions made by the Counsel for the applicant. In the case of Kamla (Supra), the Delhi High Court, had not refused to

grant interim maintenance to the wife, on the ground that She had given her incorrect address. On the contrary, the facts of the said case were that

the wife, deliberately gave the wrong address of her husband and succeeded in getting the proceedings exparte, but when the Magistrate realized, then

fresh notices at the correct address of the husband were issued and subsequently, the interim maintenance was ordered from the date of service of

notice on the husband. Thus, the judgment relied upon by the Counsel for the applicant does not help the case of the applicant in any manner.

It is next contended by the Counsel for the applicant that since, the respondent no.1 herself is residing separately without any sufficient cause,

therefore, in view of Section 125(4) of Cr.P.C., she is not entitled for maintenance amount. It is submitted by the Counsel for the applicant, that it is an

admitted position that the brother of the applicant had gone to the parental home of the respondent no.1 for taking her back, but She refused to come

back. It is further submitted that the respondent no. 1 has stated in her cross-examination that now She does not want to reside with the applicant,

clearly shows that in fact it is the respondent no.1 who does not want to join the company of the applicant. It is further submitted that the respondent

no.1 also did not join the company of the applicant inspite of the direction of the Parivar Paramarsh Kendra. It is also submitted that although the

proceedings were going on in the Parivar Paramarsh Kendra, but still the respondent no.1 lodged the F.I.R. It is further submitted that the respondent

no.1 herself had given in writing to the concerning police Station Ex. D1, to the effect that She on her own is going back to her parental home. The

Counsel for the applicant has relied upon the judgment of this Court, passed in the case of Smt Kanti Bai and another Vs. Ram Naresh Yadav

reported in 2014 SCC Online MP 7354.

Per contra, it is submitted by the Counsel for the respondents that the evidence of the respondent no.1 to the effect that She does not wish to reside

with the applicant, cannot be read in isolation and has to be read along with the allegations of harassment. If a wife is not treated properly in her

matrimonial house, then it cannot be expected of her to live in her matrimonial house, inspite of the harassment.

Considered the submissions made by the Counsel for the applicant.

The applicant himself has relied upon the reports lodged by the respondent no.1 on 30-4-2010 Ex. D.1, another complaint dated 30-4-2010, Ex. D.2,

and Ex. D.3 and the proceedings of Parivar Paramarsh Kendra dated 11-5-2010, Ex.D.4.

So far as the proceedings dated 11-5-2010 of Parivar Paramarsh Kendra are concerned, it is clear from these proceedings, that it does not bear the

signatures of the respondent no.1, thus, it is clear that either these proceedings were drawn in absence of the respondent no.1 or the respondent no.1

had not agreed to these proceedings. Be that whatever it may be. The crux of the matter is that proceedings dated 11-5-2010 does not bear the

signatures of the respondent no.1. Similarly, in the police complaints Ex. D.1,D.2 and D.3, the respondent no.1 has specifically made allegations

against the applicant. Further the assertion of the respondent that now she does not want to reside with the applicant cannot be read in isolation of the

allegations of harassment. A wife, cannot be compelled to live in her matrimonial house, inspite of her harassment at the hands of her in-laws. Thus, it

is clear that since, the applicant had treated the respondent no.1 with cruelty and was turned out of her matrimonial house, therefore, She is residing

separately in her parents house. Further, the applicant has also admitted that he has been convicted for offence under Section 498-A of I.P.C. A

person has a right to lead her life in a dignified manner and the husband has no right to behave in a cruel manner, specially when the cruelty is an

offence. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion, that the respondent no.1 is entitled

for receiving the maintenance, as She was treated with cruelty by the applicant, and therefore, it cannot be said that the respondent no.1 was residing

separately without any sufficient reason/cause.

So far as the entitlement of the respondent no.2 to receive the maintenance amount is concerned, the applicant has not denied the paternity of the

respondent no.2, therefore, it is held that both the respondents are entitled for maintenance amount.

It is next contended by the Counsel for the applicant, that he is working as a salesman in an agency and is selling the cigarettes and is getting the

monthly salary of Rs.1000/- apart from the commission and thus, in all he is earning Rs.4000/- per month. So far the income from the agricultural land

is concerned, although the mother of the applicant might be having 8 bighas of land but the agricultural income of the mother cannot be taken into

consideration. The Counsel for the applicant has relied upon the Judgment passed by the Delhi High Court in the case of Lalita Bhola Vs. Nidhi Bhola

and another reported in ILR (2013) II Delhi 1067.

So far as the question of quantum of maintenance amount is concerned, the Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan

reported in (2015) 5 SCC 705 has held as under :

''15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun (1997) 7 SCC 7 has held as follows:

(SCC p. 12, para 8)

“8. … The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable

expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of

maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when

she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot

be excessive or extortionate.â€​

Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC 316, it has

been ruled that: (SCC p. 320, para 6)

“6. … Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt.

Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the

Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the

supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children

and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat

(2005) 3 SCC 636 .â€​

This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain

the wife due to financial constraints as long as he is capable of earning.

In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila

Rani Chander Prakash 1968 SCC Online Del 52 wherein it has been opined thus: (SCC On Line Del para 7)

… an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and

child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for

such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge

his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption

will be easily permissible against him.

From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife

and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her

faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the

misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing

legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.''

It is not the case of the applicant, that he is a handicapped person. Thus, where the applicant is an able bodied person, then he cannot say that either

he would not grant any maintenance amount to his wife and child or he is liable to pay only a meager and nominal amount of maintenance. To maintain

his wife and child, it is the primary obligation of the husband and the wife and the child cannot be compelled to live the life as a destitute. The Trial

Court has awarded Rs.3000/- per month to the respondent no.1. If the price index, cost of living etc. is considered, then this Court is of the considered

opinion that the amount of Rs.3000/- per month cannot be said to be on a higher side. Similarly, an amount of Rs.1000/-per month has been awarded

to the respondent no.2, which by no stretch of imagination can be said to be on a higher side.

Thus, this Court is of the considered opinion, that the Court below did not commit any mistake is allowing the application filed by the respondents under

Section 125 of Cr.P.C. Accordingly, the order dated 26-6-2013 passed by 1st Additional Principal Judge, Indore in M.J.C. No. 457/2010 is hereby

affirmed.

This revision fails and is hereby dismissed.