Dilip Kumar vs State of Rajasthan and Another

Raghvendra S. Chauhan , J.—The petitioner-husband is aggrieved by the order dated 26.10.2010, passed by the Family Court, Udaipur, whereby the learned Court has directed the petitioner to pay a maintenance of Rs. 2,100 per month to the respondent-wife, Smt. Anita, from 26.10.2010 onwards.

The brief facts of the case are that the petitioner-husband, Dilip Kumar, and respondent-wife, Anita, were married on 27.4.1999 according to the Hindu customs and rites. According to Anita, Dilip Kumar and his family members kept her well for the first six months. However, afterwards they started demanding dowry. They also subjected her to mental and physical cruelty. Subsequently, they abandoned her leaving her at her parental place. Unable to maintain herself, Anita filed an application u/s 125, Cr.P.C. for seeking maintenance from Dilip. Vide order dated 5.6.2008, the Family Court directed Dilip to pay a maintenance of Rs. 800 per month. Aggrieved by the said order, Dilip filed a revision petition before this Court. Vide order dated 13.1.2010, this Court accepted the revision petition and set aside the order dated 5.6.2008 and remanded the case back to the learned Family Court. After the remand, the learned Family Court re-recorded the testimonies. Vide order dated 26.10.2010, as mentioned above, the learned Family Court allowed the application and directed the petitioner-husband to pay a maintenance of Rs. 2,100 per month from 26.10.2010 i.e. from the date of the order. Hence, this petition before this Court.

Mr. N.R. Goswami, the learned Counsel for the petitioner-husband, has vehemently raised the following contentions before this Court: firstly, after the case was remanded back and the testimony of Anita was recorded, the learned Family Court did not give any opportunity to the petitioner-husband to cross-examine her and her witnesses. Thus, the principles of natural justice have been violated. Secondly, there is ample evidence to prove that the petitioner-husband is studying in LLB II year and is an unemployed youth. Hence, it is not feasible for him to provide maintenance to the respondent-wife. Thirdly, in contrast, there is ample evidence to prove that the respondent-wife is earning sufficient amount of income by selling flowers and garlands in front of Sanwariyaji Temple. Thus, she is capable of maintaining herself. Hence, she need not be maintained as she can look after herself financially. Fourthly, she is disentitled from claiming any maintenance as she has deserted the husband and is staying away from him without any rhyme or reason. Therefore, the benefit of Section 125(4), Cr.P.C. should have been given to the petitioner-husband. Lastly, the learned Family Court has not given any cogent reason for increasing the maintenance amount from Rs. 800 per month to Rs. 2,100 per month. Therefore, the impugned order deserves to be quashed and set aside.

On the other hand, Mr. Mahipal Bishnoi, the learned Public Prosecutor, has strenuously contended that the petitioner-husband is not justified in claiming that his rights under the principles of natural justice have been violated. For, according to the learned Family Court, the petitioner-husband had declined the opportunity to cross-examine the witnesses inter alia on the ground that the witnesses were already cross-examined prior to the case being remanded back to the Family Court. Once the petitioner-husband himself has declined the opportunity to cross-examine the witnesses, he cannot claim that the said opportunity has been denied to him. Secondly, the petitioner-husband has failed to prove that he is a student of LLB II year. Moreover, even if he were a student and is unemployed, he, being a young man, does have the capacity to earn and maintain his wife. Thirdly, according to the testimony of Babu Lal @ Babru (NAW-4), the petitioner does own agriculture land. Therefore, he has sufficient means to provide maintenance to the respondent-wife. Fourthly, the petitioner-husband has married Manju through the Nata ceremony. Since he is already living with another woman, the respondent-wife has sufficient reason for not living with the petitioner-husband. Lastly, the petitioner-husband has taken a self-contradictory stand. On the one hand, he claims that the respondent-wife is a mentally disturbed person. Yet, on the other hand, he has pleaded that she is selling flowers and garlands in front of a temple. If she were a mentally disturbed person, she would be unable to sell flowers and garlands and to earn an income. In fact, if she were suffering from mental illness, it is more the reason for her to be maintained by the petitioner-husband. Hence, he has supported the impugned order.

Heard the learned Counsel for the parties and perused the impugned order.

During the course of arguments, this Court had asked the learned Counsel for the petitioner-husband to show the testimony of the respondent-wife and the testimony of Bhanwar Lal (AW-2). A bare perusal of the testimonies of both these persons clearly reveals that the learned Family Court has written a note at the bottom of the testimony clearly recording that the petitioner has declined to cross-examine the witnesses as they were already cross-examined prior to the case being remanded back. Once the petitioner-husband himself has declined to cross-examine the witnesses, he cannot claim that he has been denied the opportunity to cross-examine the witnesses. After all, an opportunity was certainly given by the Court, but declined by the petitioner-husband. Therefore, the first contention raised by the learned Counsel for the petitioner that his right under the principles of natural justice have been violated, is without any basis. Such a stand is clearly contradictory to the record available before the Court.

Section 125, Cr.P.C. is a beneficial piece of legislation which tries to ensure socio-economic rights of the wife. Law has always recognized the family of the weaker sex, the women. For, a woman who is abandoned by the husband is an easy pray to the male ego and male avarice and to baser instincts of men. Since women are home-makers and home-providers, since they are the runner of hearth and home, they maintain and protect the basic unit of the society, the family. In case family were to fall apart the very fabric of society would be torn apart. Therefore, Section 125, Cr.P.C. tries to protect the women from the bad elements in the society by providing them maintenance. It ensures socioeconomic justice to the women who find themselves in an animated suspension and who levitate between parental home and matrimonial home.

Considering the object, scope and ambit of Section 125, Cr.P.C, unemployment is not a justification to absolve oneself of one''s liability to maintain one''s wife. Undoubtedly, the petitioner-husband has the capacity to earn a living for himself and for the respondent-wife. Moreover, according to Babu Lal @ Babru (NAW-4), the petitioner-husband does have one bigha of agriculture land. Since the said witness has been produced by the petitioner-husband himself, there is no reason to doubt his testimony. Thus, the petitioner-husband cannot escape his liability to maintain the respondent-wife on the specious plea that he is an unemployed youth.

While trying to abdicate his responsibility of maintaining the respondent-wife, the petitioner has taken a self-contradictory stand before the Family Court. On the one hand, he has pleaded that the respondent-wife is mentally ill and was treated for mental illness. Yet on the other hand, he would have the Court believe that she is mentally fit enough to sell flowers and garlands everyday in front of a temple. In case a person is mentally ill, it is highly unlikely that the said person would sit in front of a temple, would deal with the public at large, would haggle and bargain with the public about the prices of the flowers and garlands and would be able to seek out a living for herself. In case the petitioner-husband wants the Court to really believe that the '' respondent-wife is mentally ill, the arguments become self-defeating. For, in case, she were mentally ill, it is more the reason for the petitioner-husband to maintain her. Therefore, the argument undermines the stand of the petitioner-husband himself.

The respondent-wife has clearly stated in her testimony that while she was living in the matrimonial home, repeatedly she was subjected to mental and physical cruelty by the petitioner-husband and his family members she has also alleged that the petitioner-husband has brought another woman into the house without legally divorcing her. She has also claimed that she has filed a case u/s 494, IPC in which the police has filed a charge-sheet against the petitioner-husband. A woman who is subjected to mental and physical cruelty, who is faced with the prospect of her husband having another woman, cannot be expected to live with the husband. Hence, the respondent-wife had more than sufficient reasons for refusing to live with the petitioner-husband. Therefore, the respondent-wife has not deserted the petitioner-husband. Hence, the benefit of Section 125(4), Cr.P.C. cannot be given to him.

Lastly, a bare perusal of the impugned order clearly reveals that the learned Family Court has given cogent reasons for increasing the maintenance amount from Rs. 800 per month to Rs. 2,100 per month. The order directing the payment of Rs. 800 per month as maintenance was passed in the year 2008. Undoubtedly, in the last three years, the inflation has galloped and the prices have soared. Considering the high price rise, even in the essential commodities, the learned Family Court was justified in increasing the maintenance amount from Rs. 800 per month to Rs. 2,100 per month.

For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merit, is hereby dismissed. The stay petition also stands dismissed.