Jyoti Shrivastava And Another vs Vivek Shrivastava

This is a revision filed by the applicants under Section 19 (4) of Family Courts Act, 1984 read with Section 397 of Criminal Procedure Code, 1973 against the final order dated 10.11.2017 passed by the second ASJ, Family Court Indore, wherein the application for maintenance in respect of applicant No.1 has been dismissed; whereas that of applicant No.2, though allowed, the maintenance amount awarded is quite meagre, as per the applicant.

The case of the applicants was that the applicant No.1-Jyoti was married to non-applicant-Vivek Shrivastava on 20.11.2011 as per Hindu rites and rituals and a son namely; Vidit (applicant no.2) was born out of this wedlock. The behaviour of the non-applicant towards the applicant became violent and cruel in course of time and the non-applicant was prone to exhibiting extreme behaviour, sometimes being caring towards the applicant and at other times exhibiting undue outrage resulting in extreme brutality. On 17.11.2013, when the applicant was in advanced stage of pregnancy of nine months, the non-applicant had beaten her up brutally and had sat on her chest resulting in adverse effect on the health of the applicant as also on child born subsequently on 10.12.2013 who was weak and prone to illness.

On 17.01.2014, the non-applicant again assaulted the applicant No.1 brutally and inserted cloth in her mouth in order to muzzle her voice causing bleeding from the mouth and she was not taken to any physician who then called up her parents and thereafter report was lodged.

The non-applicant works in the Software Company-I Gate in which he was a Team Leader and earns Rs.1,50,000/-per month.

The applicant No.1 has sought Rs.60,000/- as maintenance to herself and Rs.20,000/- for her son.

The non-applicant in his reply has denied the allegations and submitted that applicant No.1 was being duly taken care of by him and was indulged in frequently. She was taken to various places of tourist destinations such as Kashmir, Goa, Shimla and Sikkim etc. Immediately, after the marriage, there was a health scare of applicant No.1 who was then taken to Tata Memorial Hospital, where one of her ovaries was removed and thereafter the non-applicant on the advise of Doctors refrained from indulging in physical relation with the applicant No.1 for six months. The applicant No.1 was even made to undergo Computer Oracle Course as per her own wish. She was admitted in posh hospital where son-Vidit was born. On 17.01.2014 i.e. the date on which brutality has been alleged, both had in-fact gone to a restaurant for dinner together and also watched a movie and it is absolutely wrong on the part of the applicant No.1 to state that she was subjected to cruelty. Despite all such care, the applicants have lodged the complaint against him due to which the non-applicant had filed a case for restitution of conjugal rights. The non-applicant submits that he was only earning Rs.80,000/-which after accounting for all expenses, the non-applicant is left with Rs.5000/- only. The non-applicant had sought applicant No.1 and their son to stay with him and has filed application under Section 9 of Hindu Marriage Act, 1955 and prays for rejection of the application.

As already stated, the trial Court has rejected the application in respect of applicant No.1-Jyoti and has allowed the application in respect of applicant No.2-Vidit granting Rs.5000/- pm which as per the applicant No.1 is very meagre amount looking to the earning of non-applicant.

The trial Court in its impugned judgment dated 10.11.2017 has observed that the applicants were not only duly cared for by the non-applicant, but non-applicant even splurged on her taking her to various places of tourist destinations, took her to movies and restaurants and the photo-album submitted by the non-applicant also showed that they are happy in each other's company and it was concluded that the applicant was living separately from the non-applicants without any reasonable or sufficient cause.

In the revision filed by the applicants, it is stated that it was wrong on the part of the trial Court to hold that the applicants were living separately from the non-applicant without any sufficient cause. It is submitted that the applicants were forced to leave the company of non-applicant due to unpredictable violent behaviour of the non-applicant who was prone to bouts of anger and would physically assault her all of a sudden which reasonably caused apprehension in the mind of the applicant that her life was in danger. The trial Court did not consider the proper facts and circumstances of the case and there was no reason to disbelieve the version of the applicant. As far as the photographs in the album are concerned, the applicant No.1 submits that at the time of clicking the pictures, people generally tend to look cheerful and this ought not to be a reason to form opinion by the learned trial Court. In support of the violent behaviour of the non-applicant, the applicant No.1 has submitted photographs showing bruise marks on her hand because of which she was forced to lodge the complaint in the police station.

As far as the income of the non-applicant is concerned, it has been mentioned that the non-applicant being a Team Leader in the Software Company-I Gate was earning Rs.80,000/- per month in the year 2014 and now earns Rs.1,50,000/- per month. Non-applicant has deliberately not submitted his latest salary slips before the learned trial Court.

The applicants have prayed that the order passed by the learned Family Court Judge be reversed and the applicants be compensated as per the prayer made in the application filed under Section 125 of Criminal Procedure Code, 1973.

It is also requested that the maintenance amount awarded in favour of the applicant No.2 be enhanced.

The learned trial Court has come to the conclusion that the applicant has not assigned sufficient and reasonable ground for refusing to live with her husband and therefore she is not entitled to maintenance as per the provisions of 125(4) of the Code of Criminal Procedure, 1973.

It would be appropriate to reproduce Section 125(4) of Code of Criminal Procedure, 1973 which is as under:

"No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent".

The applicant-Jyoti Shrivastava has submitted that it was due to cruelty meted out to her by her husband that she had refused to live with him and this was sufficient reason.

Regarding allegations pertaining to cruelty, the Trial Court did not find the same to be reliable.

The statement of Jyoti Shrivastava P/1 was perused who states that behaviour of non-applicant/husband towards her changed when both of them shiftted to a flat situated in front of erstwhile flat in which other family members were living. She states that her husband when in rage, used to sit on her chest and insert a "Lower" (a soft cloth trouser) in her mouth and used to assault her and two such instances have been narrated as on 17.03.2013 and 17.01.2014. On both these instances, as per Jyoti-PW/1, the non-applicant sat on her chest who inserted lower in her mouth and slapped her. She states that due to such assault on 17.01.2014, her lips got cut and face had got swollen and there were bruise marks on her hand. She states that due to second assault she became extremely frightened and called her parents on 25.01.2014 and reported the incident in Magarpatta Police Station. The original marathi version of the report is Exhibit-P/1. She states that after coming back to Indore, the non-applicant did not make any attempt to bring her back. In para-9 of her deposition, she states that behaviour of her husband was volatile, sometimes being very good and at other times very abusive. She has submitted photographs as Exhibit-P/3 and Exhibit-P/4 and in one of those photos, bluish mark on hand can be seen. Thus, the two specific instances of cruelty are termed to be those that occured on 17.11.2013 and 17.01.2014.

The non-applicant has denied such instances of cruelty and it is his defence that on 17.11.2013 he had taken his wife for watching a movie in Central Mall, Pune (M.H.) and both did shopping as well on that day. This question has been posed to the applicant in para-26 who states that she does not remember.

This shows selective memory on the part of the applicant. She distinctly remembers being assaulted on 17.11.2013 and does not recall watching movie and going for shopping on the same day. In her application filed under Section 125 of Code of Criminal Procedure, 1973 although she has stated that the accused/non-applicant had assaulted her on 17.11.2013 but has not stated that lower was inserted in her mouth on that day. Thus, there is an exaggeration on the part of the applicant in her deposition. Incidentally, she admits in para-26 of her statements admits that in November 2013 alone she had accompanied her husband to Mahabaleshwar and barely three days later i.e on 20.11.2013 she admits to have celebrated first marriage anniversary. Although again she fails to recall as to whether the celebrations were held in famous restaurant of Pune or not.

Regarding the incident on 17.01.2014, she has been given suggestion that on that day again she had gone to Central Mall, Pune with her husband/non-applicant for shopping. This suggestion has been denied by her. Vivek Shrivastava, DW-1 in para-7 reiterates that he had gone with the applicant to Central Mall for shopping on 17.01.2014 and states that he has filed the document of City-Bank, however, no such document has been exhibited by him. Vivek Shrivastava in para-20 of his cross-examination admits that in the bank statement dated 17.01.2014, there is no mention of the name of applicant.

The report regarding assault on the applicant was lodged belatedly on 26.01.2014. This report does not contain the allegation that cloth was inserted in the mouth of the applicant. The applicant admits that on 25.01.2014 before lodging of report she had got her child inoculated and she had gone with her husband for the said purpose.

The non-applicant/husband has submitted that there was a huge delay in lodging the report. Such report was lodged on 26.01.2014 whereas the incident had allegedly occured on 17.01.2014. The applicant states that she telephoned her parents on 25.01.2014 who came from Indore and the report was lodged on the next day.

It was quite inexplicable as to how the applicant did not call her parents immediately after the incident or when she was assaulted by her husband/non-applicant on 17.01.2014 and why she waited till 25.01.2014 before calling her parents. She herself admits that on 25.01.2014 she had gone for the inoculation of her son.

There are thus two circumstances which run counter to the allegations pertaining to the cruelty. The first one is inexplicable delay in lodging the report and the second one is exaggerated allegation of insertion of cloth in her mouth which is not there in the report-Exhibit-P/1 and although one factor which stands in favour of the applicant is the bruise mark on her hand shown in photograph-Exhibit-P/4.

The applicant in para-9 of her examination-in-chief states that her husband is psycho (mentally unstable), however, such averment is not there in her application under Section 125 of Code of Criminal Procedure, 1973.

Even assuming that there was an instance of physical abuse on the applicant on 17.01.2014, whether this can be considered to be sufficient reason on the part of the applicant to live separately ?

Learned counsel for the applicant has drawn attention to the Apex Court judgement in the case of Mannava Satyawati & others vs. Mannava Malleshwara Rao & others, 1995 Supp. (3) SCC 259, in which it has been observed as under :-

"High Court fell into patent error in reaching finding that since wife and the children left the house on their own, they were not entitled to maintenance. In the facts and circumstances of this case, non-applicant was bound to maintain his wife."

Learned counsel for the applicant submits that even if it is found that wife has left the house on her own, still she would be entitled to maintenance.

The submission was considered. The Apex Court in the citation clearly states that "in the facts and circumstances of the case .....". Thus, Apex Court has held non-applicant to be liable in the peculiar facts and circumstances of the case. What were the facts of the case has not been described. Thus, it can only be stated that it varies from case to case as to whether applicant was justified in leaving her matrimonial home.

Another citation is that of Smt. Dalibai vs. Rajendrasingh, 2006 (1) MPLJ 495. In this case, although criminal case under Sections 498-A, 323 and 506 of IPC was not proved, still Court had held that criminal case was to be proven without reasonable doubt and in the case for maintenance it had reasonably been shown that applicant left the house under compulsion when harassment became intolerable.

In yet another citation which has been referred to by the learned counsel for the applicant Shano Arshad Qureshi in CRR No.1470/2009 judgment dated 6.03.2012 (High Court of MP, Bench at Indore), the wife had tried to burn herself. It was held that this indicated that matrimonial discord is not an illusion and that there were serious differences between the husband and wife and it was observed that it could not be said that wife had refused to live with husband without any good reason. It was also observed that provisions of Section 125 Criminal Procedure Code is a beneficial legislation made for protection of woman and the wife was not entitled for maintenance.

In another cited case-Kamala Bai vs. Amritram MPWN-1990 (II) NOTE 166, there were two instances of cruelty found proved. The first was starving the applicant for days together and the second was snatching her ornaments and wife was found to be entitled for maintenance in such cases. Other similar citations have been submitted in which there was a reasonable cause for wife to live separately from her husband.

It has already been found just because wife had left her matrimonial home does not per-se entitle for maintenance until and unless she shows sufficient cause. Reverting back to the present case, sufficient cause assigned by the wife is 'cruelty' meted out to her by non-applicant/husband.

The only instance of probable physical assault on the applicant is 17.01.2014, although that is also doubtful in view of the delayed lodging of FIR with delay not been explained.

Even assuming that there was a physical assault whether the same can be considered to be a sufficient ground for wife to leave her matrimonial home.

This has to be considered in the backdrop of proved instances of indulgence towards applicant by non-applicant such as entertaining her, caring her in her times of physical distress.

Learned counsel for the applicant has submitted that the behaviour of non-applicant/husband was unpredictable. However, it has been found that excepting one instance of 17.01.2014, there has no proof regarding assault on earlier occasions. Although the wife terms her husband to be psycho, however, in her application under Section 125 of Code of Criminal Procedure, there is no such mention.

The Hon'ble Apex Court in the case of Shobha Rani vs Madhukar Reddy reported in AIR 1988 SC 121 has observed that word 'cruelty' has not been defined in the Hindu Marriage Act, 1955. The Apex Court observes as under :-

"The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse."

The Court goes on to say that the intention of non-applicant has to be gathered and if the intention is to harm, harass or hurt then cruelty could be easily be established and even in cases, if the act of cruelty is established, the intention to commit cruelty cannot be established then the aggrieved party may not get relief.

Coming to the case at hand, there is indeed an instance of suspected assault on petitioner by the respondent whether this can be considered to be sufficient reason for wife to leave her matrimonial home, is to be considered. A prudent person would tend to do so if because of the act of her spouse a reasonable fear is instilled in the mind that continuing to live with the spouse would not be good for the mental peace or for the life of the victim spouse. It is true that a spouse is not expected to live in constant fear of sudden and sporadic violent behavour of husband. The applicant however, has not been able to prove sporadic violent behavour of respondent. Even a single instance of unexpected violent behaviour may reasonably instill fear in the mind of wife. However, in the case in hand, the allegation of violence has not been substantiated adequately for the reasons already assigned earlier. As already stated, there was a "suspected" assault which has not been established. Thus, cruelty of either kind i.e. mental or physical has not been found proved. Even considering that there was an instance o physical assault, the same can not be considered to be of such gravity which may reasonably cause apprehension regarding insecurity to life and would not be a ground for wife to leave matrimonial home.

In the present case, only one instance of suspected assault is perceptible which cannot be termed it to be sufficient ground for the applicant to leave her husband. The applicant has not been able to prove sporadic violent behaviour of her husband. Had that been so, she would have definitely confided it with her parents and would have produced them as witnesses which has not been done. Hence, the finding of the trial Court that the applicant had left the matrimonial home without sufficient cause and therefore she is not entitled for maintenance, is affirmed. Hence applicant No.1 is not entitled for any maintenance.

Regarding the enhancement of maintenance allowance of applicant No.2 is concerned, which is Rs.5000/- per month, considering all aspects of the income of non-applicant/husband, this amount is enhanced from Rs.5000/- per month to Rs.15000/- per month, which looking to the standard of life led by the non-applicant/husband, would be the appropriate amount.

This criminal revision resultantly succeeds in part in above terms.