Harish Raisen vs Smt. Kavitabai Raisen

S.S. Dwivedi, J.

The applicants have preferred these revisions u/s 397 of Criminal Procedure Code feeling aggrieved by the impugned order dated 13-6-2005 passed by Additional Judge, Family Court, Indore in M.Cr.C. No. 941/05 whereby allowed the petition filed on behalf of the Smt. Kavitabai/wife u/s 125 of Criminal Procedure Code and ordered for the grant of maintenance amount of Rs. 1000/- per month in favour of the wife/Smt. Kavitabai.

The husband/Harish has challenged the aforesaid order for the grant of maintenance amount in favour of the wife/Smt. Kavitabai whereas the wife/Smt. Kavitabai has challenged the impugned order with regard to insufficient amount of maintenance granted by the trial Court, therefore, prayed for enhancement of the aforesaid amount.

As both the revisions have been preferred against the impugned order passed by the trial Court, hence both the revisions are being decided by this common order. The main order be attached with Criminal Revision No. 737/05 whereas the copy of the order be attached with Criminal Revision No. 881/05.

Briefly stated the facts of the case are that, the wife/Smt. Kavitabai is the legally wedded wife of the non-applicant/Harish. Their marriage took place as per Hindu Custom. It is alleged that after their marriage, the husband/Harish had started treating the wife/Smt. Kavitabai with cruelty and also beat her several times and threaten her for the divorce also. He also threatened her that he would re-marry with some other lady. Because of this cruelty coupled with demand of dowry, the wife Smt. Kavitabai had been forced to live separately at her parental house at Indore. As the husband/Harish is not paying any maintenance amount to the wife/Smt. Kavitabai, therefore, on the basis of these allegation, the wife/Smt. Kavitabai had filed a petition u/s 125 of Criminal Procedure Code for the grant of maintenance before the Family Court, Indore. The learned Presiding Judge of the Family Court, Indore after due appreciation of the evidence, both the parties allowed the petition and ordered for the grant of the maintenance amount of Rs. 1000/- per month in favour of the wife/Smt. Kavitabai. Feeling aggrieved by which, the husband/Harish has preferred Criminal Revision No. 737/05 for setting aside of the impugned order for the grant of the maintenance whereas the wife/Smt. Kavitabai has also filed Criminal Revision No. 881/05 feeling aggrieved by the quantum of the maintenance amount granted by the trial Court and prayed for enhancement of the aforesaid amount.

Having heard the learned counsel for both the parties and perused the record.

It is submitted on behalf of the husband/Harish that the wife/Smt. Kavitabai has failed to prove so-called cruel treatment by the husband and in spite of that, the trial Court has wrongly ordered for the grant of maintenance in favour of the wife/Smt. Kavitabai. Similarly, husband/Harish is only earning Rs. 1200/- per month and the trial Court has wrongly ordered for the grant of maintenance amount of Rs. 1000/- per month in favour of the wife/Smt. Kavitabai. As the wife/Smt. Kavitabai is living separately without any sufficient reason, she is not entitled to get any maintenance amount from the husband, therefore, prayed for setting aside of the impugned order passed by the trial Court.

In reply, the learned counsel appearing on behalf of the wife/Smt. Kavitabai supported the impugned order for the grant of the maintenance amount and also prayed for enhancement of the amount which has been granted by the trial Court, therefore, prayed for dismissal of the revision preferred by the husband/Harish and also prayed for the enhancement of the maintenance amount.

Before the trial Court, the wife/Smt. Kavitabai [PW-1] clearly stated that due to cruel treatment of her husband, she is living separately in her parental house at Indore. She had also lodged FIR in the police station with regard to the demand of dowry by the husband and other relative, on which basis the case u/s 498(a) of Indian Penal Code has been registered. But unfortunately, the trial Court has discharged the accused person from the aforesaid charge u/s 498(a) of Indian Penal Code. But by this statement of the Smt. Kavitabai/wife with regard to the alleged cruel treatment cannot be disbelieved. Similarly, it is also alleged by the wife/Smt. Kavitabai that her husband/Harish has contracted marital relation with one lady/Manu also. This statement of the wife/Smt. Kavitabai has got further support by the statement of Rajaram Dhakone (PW 2) who is the father of the applicant/wife/Smt. Kavitabai. He also stated the same facts that his daughter/Smt. Kavitabai had been treated with cruelty by her husband/Harish coupled with the demand of dowry of Rs. 15,000/-and motor cycle etc. Similarly, his daughter also stated to him that the husband/Harish told her that he wanted to marry with some other lady, therefore, the wife/Smt. Kavitabai could not live with him. In rebuttal, the husband/Harish (DW 1) examined himself who stated that the case had been registered against him u/s 498(a) and 506 of Indian Penal Code but in that case, the trial Court has discharged him. He had not treated his wife/Smt. Kavitabai with cruelty.

It is also on record that the husband/Harish has filed a divorce petition at the Family Court in Bhopal, from where he had obtained decree for divorce against the wife/Smt. Kavitabai. In such circumstances also, the divorced wife is also entitled to get maintenance amount from her husband. On the basis of the aforesaid discussion of the evidence on record, in my considered opinion, the learned trial Court has rightly came to the conclusion that as divorced wife, the wife/Smt. Kavitabai is entitled to get maintenance amount from her husband/Harish.

With regard to quantum of the maintenance amount is concerned, it is alleged that the husband/Harish has stated that he is an unemployed person and as a normal and a healthy person, he is having capacity to earn at least Rs. 1800/-per month by doing some labour work. In view of that, the trial Court came to the conclusion that the wife/Smt. Kavitabai is entitled to get maintenance amount of Rs. 1000/- per month from her husband/Harish.

As stated hereinabove with regard to earning capacity of the husband/Harish, there is no evidence on record and as per notional income, the trial Court came to the conclusion that the husband/Harish can pay the amount of Rs. 1000/- per month in favour of the wife/Smt. Kavitabai, therefore, the approach of the trial Court appears to be just and reasonable and the wife/Smt. Kavitabai is not entitled to get any enhanced maintenance amount from her husband/Harish. There is no proof about his income on record on which basis, the amount can be enhanced to Rs. 3000/-

The learned counsel for the husband/Harish placed reliance on the decision of the Chattisgarh High Court reported in Shiv Kumar Yadav vs. Smt. Santoshi Yadav, 2004 (III) Man 87 (C.G.) and Manubai Vs. Sukhdeo, . In these decisions, it is held that "if the wife is living separately without any sufficient reason, then she is not entitled to get any maintenance amount from her husband." But as stated hereinabove, in the present case, it is proved that due to the cruel treatment of the husband, the wife/Smt. Kavitabai is living separately and moreover, the husband also seeks decree for divorce against the wife. In such circumstances, the divorced wife is also entitled to get maintenance amount from the husband, therefore, the aforesaid case law are not applicable to the facts of the present case.

The learned counsel for the wife/Smt. Kavitabai placed reliance on the decision of the Apex Court reported in Rohtash Singh Vs. Smt. Ramendri and Others, wherein it is held that the divorced wife is entitled to get maintenance from her husband. Though the divorce was on account of desertion by the wife. This has been held as under :

9) On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, , observed as under:

This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant works with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts.

9A) Claim for maintenance under the first part of section 125 of Criminal Procedure Code is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of section 125 of Criminal Procedure Code. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife u/s 125 of Criminal Procedure Code and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See : Sukumar Dhibar Vs. Smt. Anjali Dasi, . The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

Thus, on the basis of the aforesaid law laid down by the Hon''ble Apex Court, in the present case also the wife/Smt. Kavitabai is a divorced wife though the decree for divorce has been passed on the ground of desertion by the wife that by itself claim for maintenance cannot be refused to the wife. The same view has taken by this Court in Subhadra Vs. Rajendra Prasad, wherein it is held that "the divorced wife is entitled to get the maintenance amount from her husband."

Thus, on the basis of the aforesaid discussion of over all facts and on the basis of case law on the point, in my considered opinion, the trial Court has rightly granted maintenance amount of Rs. 1000/- per month in favour of the wife/Smt. Kavitabai and no grounds are available for any interference in the aforesaid order. Similarly, there is also no ground available for any enhancement of the aforesaid amount granted by the trial Court.

Resultantly, the revision petition preferred by the husband/Harish for setting aside of the impugned order and revision preferred by wife/Smt. Kavitabai for modification and enhancement of the maintenance amount granted by the trial Court. Both the revisions, being devoid of any merits are dismissed accordingly.