Munnabai vs Kamal

This Criminal Revision under Section 19 (4) of the Family Courts Act has been filed calling in question the order dated 28/9/2016 passed by the

Principal Judge, Family Court, Neemuch in M.J.C. No.361/2014 for enhancement of the maintenance amount awarded by the Family Court.

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

maintenance on the ground that she was married to respondent on 16/4/2000 as per Hindu rites and rituals. The respondent and his family members

used to scold the applicant by passing taunts that she is ugly and they also used to harass the applicant for demand of motorcycle. As their demand of

motorcycle could not be fulfilled, therefore, she was turned out of her matrimonial house on 15/1/2014 and from thereafter, she is residing at her

parents' home and the respondent has remarried. It was further stated that the respondent has 30 Bigha of agricultural land in village Malki, Tahsil and

District Neemuch and is earning Rs. Five Lacs per year and is also carrying on a dairy business and is earning Rs.30,000/- per month and since the

applicant has no source of income and she is unable to maintain herself, therefore, a prayer was made for grant of maintenance at the rate of

Rs.10,000/- per month.

The respondent filed reply and submitted that the applicant was mentally retarded and by suppressing this fact, she was married to the respondent.

The applicant was never harassed because of demand of any motorcycle or on the ground that she is ugly. In fact, no demand of motorcycle was ever

made and she was never turned out of her matrimonial house on 15/1/2014 and the respondent has not remarried. It was further mentioned in the

reply that the respondent has no agricultural land.

The applicant in support of her case, examined herself and her father-Ramkishan (PW-2), whereas the respondent examined himself and one

Shivcharan (DW-2).

The Family Court by order dated 28/9/2016 finally disposed of the application filed under Section 125 of Cr.P.C. holding that the applicant is entitled

for receiving the maintenance amount and considering the fact that the applicant has not led any evidence with regard to the income of the respondent,

therefore, granted the maintenance amount at the rate of Rs.3,000/- per month from the date of the order, i.e.28/9/2016.

Challenging the order passed by the trial court, it is submitted by the counsel for the applicant that the maintenance amount of Rs.3,000/-, which has

been awarded to the applicant, is on lower side. The respondent is the owner of 30 Bigha of land and belongs to a rich family, whereas the

submissions made by the counsel for the applicant were refuted by the counsel for the respondent. It was submitted by the counsel for the respondent

that it is an admitted position that the respondent has no agricultural land. Whatever land the family of the respondent is having, that is in the name of

his father and, therefore, it cannot be said hat the respondent is having any independent source of income.

Considered the submissions made by the counsel for the parties.

So far as the entitlement of the applicant to receive the maintenance amount is concerned, as the court below has already given a finding in favour of

the applicant and the same has not been challenged by the respondent by filing a separate revision, therefore, it is held that the applicant is entitled for

maintenance amount.

Now the only question, which remains to be adjudicated, is the quantum of maintenance amount. It is the well established principle of law that the wife

is entitled to enjoy the same status, which otherwise she would have enjoyed in her matrimonial house. In the present case, the applicant had pleaded

in her application under Section 125 of Cr.P.C. that the respondent has 30 Bigha of irrigated agricultural land and also has a dairy business, from

which he is earning Rs.30,000/- per month, however, in the evidence the applicant (PW-1) as well as Ramkishan (PW-2), who is the father of the

applicant, have fairly admitted that the respondent has no agricultural land in his name and the entire agricultural land is in the name of the father of

the respondent. Thus, it is clear that the respondent has no agricultural land having an independent source of income. The applicant (PW-1) has also

not stated that the respondent is earning Rs.30,000/- per month from his dairy business, on the contrary, in her evidence she has stated that from the

agricultural land and dairy business, the respondent is earning Rs. Five Lacs per year. The applicant in her crossexamination has stated that the

respondent was aged about 10 years at the time of marriage, whereas she was 18 years of age. The applicant could have obtained the certified copy

of the revenue records to show the agricultural land recorded in the name of the father of the respondent, however, neither the said document was

filed nor any application under Section 91 of Cr.P.C. was filed before the court below seeking direction to the authorities to produce the revenue

records pertaining to the agricultural land belonging to the father of the respondent.

So far as the individual income of the respondent is concerned, it is well established principle of law that if the husband is an able-bodied person, then

he cannot deny to make payment of maintenance to her wife on the ground that he has no independent source of income.Â

The Supreme Court in the case of Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705has 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 1968Â 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.''

Thus, where the parties have failed to establish the independent income of the husband, then for adjudicating the quantum of maintenance, the

financial as well as social status of the parties have to be taken into consideration. In the present case, by filing the revenue records the applicant

could have established the financial as well as social status of the family of the respondent, however, neither any document was filed nor steps were

taken to get those documents requisitioned through Court. Under these circumstances, where it is clear that the parties are rustic villagers and their

livelihood is dependent on the agricultural activities, then considering the price index as well as the social and financial status of the parties, this Court

is of the considered opinion that the maintenance amount of Rs.3,000/- per month as awarded by the court below is proper and in accordance with

law.

Under these circumstances, this Court is of the considered opinion that the impugned order passed by the court below does not require any

interference and consequently, the order dated 28/9/2016 passed by the Principal Judge, Family Court, Neemuch in Criminal M.J.C. No.361/2014 is

hereby affirmed.

This revision fails and is accordingly dismissed.Â