Bhupendra vs Bhavna Dodiya and others

This criminal revision filed on behalf of the revision petitioner/ husband Bhupendra is directed against order dated 15.5.2015 passed by the Court of the Principal Judge, Family Court, Khandwa in M.J.C.No.139/2015, whereby the petition under Section 125 of the Cr.P.C. filed on behalf of the respondent wife Bhavna Dodiya and respondents minor children Omiraj and Khushi for maintenance was allowed and petitioner husband Bhupendra was directed to pay 5,000/- per month each, to the three respondents by way of maintenance.

It is not in dispute that the respondent Bhavna is legally wedded wife of petitioner Bhupendra and respondent Omiraj is 11 years old and respondent Khushi is 7 years old minor children of petitioner Bhupendra.

After the trial, learned Principal Judge, Family Court, Khandwa recorded findings to the effect that the respondent/wife is unable to maintain herself and her children and the petitioner husband, in spite of having sufficient means is refusing or neglecting to maintain the respondents; therefore, he is liable to pay maintenance allowance to the respondents as aforesaid.

The findings of the trial Court have been challenged in this revision petition mainly on the grounds that learned trial Court failed to properly appreciate the evidence adduced by the parties and erroneously recorded a finding that the respondent Bhavna has sufficient grounds to live separately from the petitioner and claims maintenance. In fact, the respondent Bhavna was always dissatisfied with the petitioner and his family members and used to mentally and physically harass them. Even at present she is living with the petitioner and petitioner is maintaining her and their children. It has further been contended that the trial Court recorded a finding on unsustainable ground that the petitioner is owner of the tent house; whereas, the tent house belonged to his father and the petitioner is only working as a labourer and earns Rs. 100/- - 150/- per day. As such, maintenance allowance at the rate of Rs.15000/- per month is excessive and beyond the means of the petitioner.

It may be noted at the outset that in the revisionary jurisdiction, the Court is not expected to meticulously sift, weigh and re-appreciate the evidence as if in an appeal.

A perusal of the record reveals that the learned trial Court has appreciated the evidence adduced by both the parties in proper perspective and mainly on the basis of admission made by the petitioner has recorded a finding that at the present respondent Bhavna is living with her children in a room which is on the top floor of the house belonging to the husband. Aforesaid room is in a dilapidated condition and may fall down any time. Respondent Omiraj has deposed that his grand-mother and his father (petitioner Bhupendra) lived down stairs and prepared their meals separately. Thus, at present the respondent/wife is living separately in the same house with her children and petitioner Bhupendra has withdrawn from their company. This conduct of the petitioner husband amount to cruelty and desertion.

It is also clear from the evidence led by the respondent wife that the petitioner husband and respondent wife had married 14 years ago. After the four months of marriage, the petitioner husband had quarreled with her and turned her out of her matrimonial home. Consequently, she had lodged a report in the family Consultation Center, where a compromise was reached after that the respondent husband and the petitioner wife lived in a rented house from the year 2007 to 2011. In the year 2011, the petitioner beat her up and left her and her children at her maternal home. After that, when the petitioner husband was afflicted with tuberculosis, the respondent wife took her petitioner husband to her maternal home and got him treated by pledging her ornaments. When the petitioner husband recovered, he again returned to live with his mother and thereafter stopped maintaining his wife and the children.

In aforesaid circumstances, the trial Court recorded a findings are that though the respondent/wife and children are living at the same house as the petitioner/husband, they are living separately and the petitioner husband is neglecting to maintain them. There is no ground for interference with the aforesaid finding, as in this regard, the

statement of respondent/wife is fully supported by the respondent/son and daughter.

The next question that arises for consideration is whether the petitioner has sufficient means to pay Rs.15000/- in all to wife and children by way of maintenance. Again on the basis of the admissions made by the petitioner/husband, the trial Court has recorded the finding that the petitioner has inherited the tent house and he is running the same. He is not merely employed therein but runs the same. Aforesaid tent house is located in a commercial area of Khandwa town. Earlier it was run by elder brother of the petitioner /husband. He had adopted the petitioner and at present the tent house is being run by the petitioner. He lets chairs, tents, carpets and utensils on hire and whenever the demand is high, he arranges for the same from other sources and earns commission thereon. In aforesaid circumstances, the trial Court has held that it cannot be believed that the petitioner is merely an employee of the tent house and earns Rs.100-150 per month. The petitioner has admitted that the bill of the tents come to Rs.5000/- to 8,000/- per day and assuming that the margin of profit is 10%, the petitioner earns at least Rs.800/- per day or about Rs. 24,000/-25,000/- per month. The trial Court has rightly disbelieved the contention of the petitioner that he arranges for the fees and other educational expenses of respondents No.2 and 3. Keeping in view the income of the petitioner as assessed above and the need of growing, school going children, each of the three respondents has been awarded Rs.5,000/- per month; as such, petitioner has been made liable to pay Rs.15,000/- to the respondents.

In this regard, learned counsel for the petitioner has argued that even if it is assumed for the sake of argument that the petitioner earns 20,000-25,000/- per month, the maintenance @ Rs.15000/- per month is too high, keeping in view the fact that the respondents are living in the same house with the petitioner.

It may be noted here that petitioner''s mother is dependent upon the petitioner so there are five units in the household. Business of tent house is seasonal and demand fluctuates; therefore, it would be appropriate to reduce the monthly amount of maintenance being awarded to respondent children from Rs.5000/- each to Rs.3,500/- each.

On the basis of foregoing discussion, this Court is of the view that there are no grounds for interfering with the findings of the trial court that the respondent wife is unable to maintain herself and her children and the petitioner husband, in spite of having sufficient means, is neglecting to maintain them; however, the rate of maintenance awarded to the children is required to be reduced from Rs. 5000/- per month each to Rs. 3500/- per month each.

Consequently, this criminal revision is allowed in part. The impugned order is modified to the extent that the petitioner/husband shall pay Rs.3500/- each, per month to respondent son Omiraj and respondent daughter Khushi instead of Rs.5000/- per month, each.

This criminal revision stands disposed of accordingly.