Rahul Bhargava vs Rashmi Bhargava

This revision under Section 397/401 of Cr.P.C. filed by the petitioner being aggrieved by the order dated 30.01.2019 in M.J.C. No. 212/2018 passed by the Principal Judge, Family Court, Bhopal. Whereby the interim maintenance of Rs. 2500/- per month has been given to the respondent by the petitioner.

On perusal of case, it appears that the respondent has filed an application under Section 125 of Cr.P.C. stating that her marriage with the petitioner was solemnized on 15.12.2001 and their cohabitation, they have been blessed with two children who aged about 14 and 12 years. The children are residing with petitioner as the petitioner kept them forcefully. She further stated that the petitioner restricted her to meet her children. She further stated that the petitioner used to beat her and his behavior was very cruel towards her. He also tarnished her image by blaming on her character. On 05.10.2012, the petitioner came her matrimonial house along with his brother and friend and abused the respondent and her father. She stated that due to aforesaid behavior, she is compelled to reside separate at her matrimonial house. Regarding income, she stated that she has no source of income and her parents are taking care of her whereas the petitioner is having medical shop and earning Rs. 50,000/- per month. He also taking rent of his house about of Rs. 10,000/- per month. She stated that all her stridhan are in possession of petitioner.

On reply, the petitioner stated that the respondent has falsely said that he kept the children forcefully from her. He submitted that the children are residing with him on their own will. The respondent does not come to meet them. He further submitted that he neither tortured the respondent nor insulted. The behaviour of respondent was not good towards his and his family member. The respondent forced him to live separate from his family. She used to make quarrel with him. The respondent is of open minded woman and wanted to live separate. The petitioner did not abuse her father. The respondent is living separately without any sufficient reason due to which the children are deprived from love and affection of mother. Regarding income, he stated that the respondent is working teaching job and also took tuition classes, she earns Rs. 20,000/- per month. The petitioner stated about his income saying that he is running retail medical shop and earns Rs. 12-15 thousand per month and half of it is given to his brother as they are performing joint business. He also denied the income from rent house. He stated that he did not take her stridhan.

During the proceeding, the respondent has filed an application for interim maintenance asking for Rs. 15000/- per month. The learned Family Court after considering the fact and circumstances of the case awarded the interim maintenance to the respondent as aforesaid.

Learned counsel for the petitioner submits that the order passed by the learned Family Court is bad in law and deserves to be quashed, he submits that the respondent has filed an application under Section 13 of Hindu Marriage Act before Family Court, Guna which was dismissed vide order dated 08.03.2017. While passing the order dated 08.03.2017, the learned Family Court came to the conclusion that the petitioner did not commit any cruelty with the respondent. Therefore, she is not entitled to get any maintenance from the petitioner. Further, he submits that he has filed an application under Section 9 of Hindu Marriage Act before the Family Court Reabareli wherein the respondent was declared ex-parte and decree for restitution of conjugal right has been given in favour of the petitioner even then the respondent did not come to reside with the petitioner. Therefore, there is no question of interim maintenance to the respondent. Apart from that she is earning from teaching job. So far as income of the petitioner is concerned, earns hardly 10-15 thousand per month from joint business with his brother. Therefore, the petition may be allowed. In support of his contention, he has relied the judgment of this High Court in the case of Renu Vs. Heeralal reported in (2002) 3 MPLJ 320.

On the other hand, learned counsel for the respondent opposes the petitioner and submits that the petitioner committed cruelty with her and he took her children forcefully. He restricted her to meet the children. She further submits that the respondent is dependent upon her parents as she has no source of income. He submits that the trial Court has awarded the meager amount of interim maintenance, therefore, the petition may not be allowed.

Heard both the parties and perused the case.

On perusal of the case, the facts which are found undisputed are that there is marital relationship between the parties and they have been blessed with two children. It shows that the children are residing with the petitioner although the respondent alleged that he took them forcefully. It is also found that in proceeding of Section 13 of Hindu Marriage Act filed by the respondent, the Family Court did not find prove the question of cruelty towards the respondent by the petitioner. The learned Family Court has dismissed the divorce petition filed by the respondent/wife. The respondent has also not informed about the fact whether she has challenged the findings of learned Family Court or not. It is also found that in the proceeding of Section 9 of Hindu Marriage Act filed by the petitioner at Family Court Raibareli, the respondent did not appear and ex-parte decree has been passed in favour of the petitioner but this fact could not be considered in impugned order as same has been passed subsequently.

On perusal of record, it is found that the respondent has suppressed the fact that she has filed the application of divorce under Section 13 of Hindu Marriage Act on the ground of cruelty and desertion by the petitioner. Since, both the parties have appeared before the Family Court in divorce proceeding and the Court did not find prove the fact of cruelty and desertion by the petitioner as alleged by the respondent, therefore, there is no sufficient reason to the respondent to live separate from the petitioner. Moreover, it also appears from the order that she expressed that even if the petitioner is willing to maintain her well, she does not want to reside with him. Therefore, the respondent has no sufficient reason to live separate with the petitioner.

So far as income of the respondent is concerned, it is appeared from the order dated 08.03.2017 passed in pursuant to proceeding of Section 13 of Hindu Marriage Act, the father of respondent admitted the fact that she is doing job at Bhopal. It also appears that the respondent herself stated that he was doing job at Guna and earning Rs. 16,000/- per month. In such circumstances, it cannot be presumed that the respondent is not capable to survive herself, specifically when the children are residing with the petitioner.

Therefore, this petition is allowed and the order dated 30. 01.2019 in M.J.C. No. 212/2018 passed by the Principal Judge, Family Court, Bhopal is hereby set aside. However, it is made clear that the finding passed in this case are only a prima facie evaluation of this Court and same shall not affect the merits of the case for passing the final order by the learned Court below.