Sanjay Chopra vs Shyama

M.L. Singhal, J.—Smt. Shyama was married to Sanjay Chopra at Delhi on 20.4.1992. On 18.1.1994, Divya Chopra was born to them. Shyama''s parents spent a sum of Rs. 3.00 lacs on her marriage. They gave gold ornaments, precious clothes etc. in marriage. Still, Sanjay Chopra, his father and unmarried sister started taunting her that she had not brought adequate dowry. They put forth demand for Rs. 2 lacs on her as Sanjay Chopra was to expand his business. Her parents were not in a position to fulfil this demand. Smt. Shyama brought home to them that her parents had already spent enough on her marriage and they were not in a position to fulfil the demand. She was maltreated, harassed and taunted. She was also beaten. Sanjay Chopra was a drug-addict. She kept tolerating all this in the hope that better sense might prevail upon them and they would develop kind attitude towards her, full of love and affection. Child was born to her at Delhi in the hospital. Her mother came to Delhi in the hospital but she was insulted by Sanjay Chopra, his father and sister. When the child had grown two months old, she was asked to go to her parents, demand (sic). On 9.10.1994, he alongwith (sic) Rs. 2 lacs was also reiterated. It may also be mentioned here that Sanjay is Delhi-based and he resides at Delhi. On 18.8.1994, she sought her in-laws'' permission to visit her parents on the occasion of Raksha Bandhan, she accordingly came to her parents. She was not allowed to take any article with her. Respondent repeated his demand at the house of her parents also who explained their inability to fulfil his demand. Sanjay Chopra told her parents that if his demand was not fulfilled, she would not be allowed to enter the matrimonial home. Ever since 18.8.1994, she has been putting up with her parents alongwith her child. During this period, Sanjay Chopra has not come to the matrimonial home. He has not sent any maintenance to them She has no source of income. She owns no property. She is unable to maintain herself and the child. On the other hand, respondent had a Printing Press, Photostat and Lamination business and is earning Rs. 10,000/- per month. He can well maintain her and the child. He has intentionally and wilfully neglected them and has refused to maintain them. On these allegations, she filed application against Sanjay u/s 125, Cr.P.C. claiming maintenance for herself and for her child at the rate of Rs. 500/- and Rs. 400/- respectively per month.

Sanjay Chopra contested her claim to maintenance. It was denied that he ever neglected and refused to maintain Shyama and the child. It was denied that he or his parents ever put forth any demand for Rs. 2 lacs. It was denied that he or his parents ever expressed that the dowry brought by her was inadequate. It was denied that he was a drug-addict. On 9.10.1994, he alongwith aunt of the mediator and the son-in-law of the mediator went to the house of her parents with a view to bring her back to the matrimonial home but she refused to accompany him to the matrimonial home that she was working in a school at Ludhiana. It was further alleged that she is gainfully employed as Senior Commerce teacher at K.V.M. School, Ludhiana and is earning about Rs. 3,672/-per month. She earns another Rs. 3,000/- per month from tuition work. She is thus in a position to maintain herself and the child. It was denied that he earns Rs. 10,000/- per month.

On the conclusion of the trial of this application, Sub-Divisional Judicial Magistrate, Jagraon accepted this application and allowed maintenance to Smt. Shyama at the rate of Rs. 400/- and to the child at the rate of Rs. 300/- per month payable with effect from the date of application''so far as child is concerned, payable to the wife with effect from 10.5.1995 i.e. when her services were terminated.

Sanjay Chopra has come up in revision to this Court against the order of the Magistrate dated 11.6.1998 granting maintenance to the wife and the child and has prayed that this order be set aside.

On the motion stage, this revision was dismissed so far as the grant of main tenance to the child is concerned because the child has to be maintained by his/ her father wherever he/she is i.e. whether he/she is with the father or he/she is with the mother. Notice of motion was issued to the respondent/wife qua the grant of maintenance to her alone as the contention raised by the husband was that there is decree for restitution of conjugal right in his favour against the wife passed by Additional District Judge, Delhi and the decree for restitution of conjugal rights passed against the wife shows that she has withdrawn from his society without reasonable cause or excuse and as such the finding of the Criminal Court that Sanjay (husband) has neglected to maintain the wife (Shyama) cannot hold the field.

I have heard the learned Counsels for the parties and have gone through the record.

Learned Counsel for the petitioner (husband) submitted that the wife could not be allowed maintenance against the husband when the husband had filed a petition for restitution of conjugal rights against her at Delhi urging that wife has withdrawn from his society without reasonable cause or excuse and that he was always ready and willing to keep her and maintain her and had obtained decree for restitution of conjugal rights in his favour from the Court of Additional District Judge, Delhi on 4.9.1996 vide Annexure P-2. In support of this submission he has drawn my attention to Sher Singh v. Rajwinder Kaur 1997 (1) CLR 164 : (1997) DMC 658. It has been submitted that in Annexure P-2, Additional District Judge, Delhi, has observed that the husband is not bound to put up with the wife at Ludhiana where she has taken up the job of a teacher. It was also observed that the wife has to put up with the husband at the place where husband wants her to reside with him and cohabit with him. Husband has a right to require his wife to live with him wherever he may choose to reside and the wife is not absolved from discharging her corresponding duty. Wife cannot refuse to reside with the husband at the place which is the matrimonial home chosen by the husband and discharge her marital duties there. It has been submitted by the learned Counsel for the petitioner that in the face of the decree for restitution of conjugal rights, the order of maintenance in favour of the wife by the Criminal Court cannot be sustained. In Sher Singh v. Rajwinder Kaur (supra) it was held that after the decree of restitution of conjugal rights, the husband was justified in applying for revoking the order as per Section 127(2) of the Code.

In 1997 (1) CLR 164 (supra) wife had been allowed ad-interim maintenance. Husband made an application u/s 127(2) of the Code of Criminal Procedure for cancellation of the order of ad-interim maintenance in view of his having obtained a decree of restitution of conjugal rights. S.S. Sudhalkar, J. of this Court quashed the order granting interim maintenance to the wife while accepting the plea of the husband. It was held by S.S. Sudhalkar, J. that Matrimonial Court is akin to "Civil Court". Finding of the Matrimonial Court has to be viewed as the finding of the Civil Court and is binding on the Magistrate. Reliance was placed on Teja Singh v. Smt. Chhoto 1981 (4) MLJ 400 by S.S. Sudhalkar, J.

Learned Counsel for the petitioner drew my attention to Ravendra Kaur v. Achant Swarup 1966 Cri.LJ 247 to fortify the aforesaid submission where it was held that if the husband had obtained decree for judicial separation against his wife, no maintenance could be claimed by her. It was held that the wife was not entitled to maintenance and Magistrate was bound to take notice of the decision of the Civil Court as provided u/s 489(2) of the Code of Criminal Procedure (old) even though there was no specific application under that section before him.

Learned Counsel for the respondent, on the other hand, submitted that in case the husband has got an ex parte decree of restitution of conjugal rights, it shall not be binding on the Criminal Court in exercise of its jurisdiction u/s 125, Cr.P.C, unless in the proceedings of restitution of conjugal rights a specific issue had been framed on the point as to whether without any sufficient reason, wife refused to live with the husband and the parties had been given an opportunity to lead evidence and, thereafter, a specific finding is recorded by the Civil Court. He sought to draw support for this submission from a Division Bench judgment of this Court reported as Ravi Kumar v. Santosh Kumari 1997 (3) RCR 4 : (1998) DMC 590 (DB). It has been submitted by learned Counsel for the respondent that the husband filed petition for restitution of conjugal rights at Delhi on 12.7.1995, when proceedings u/s 125, Cr.P.C. had been filed by the wife against him on 29.11.1994 and he had appeared before the Court on 16.1.1995. It has been submitted by him that proceedings for restitution of conjugal rights were filed by the husband mala fide with intent to defeat the wife''s claim to maintenance. It was held in Jagdish Kumar v. Munish Kumari 1986 (1) All 410, that where husband filed petition for restitution of conjugal rights as counter- blast to the application filed against him u/s 125 of the Code of Criminal Procedure, husband''s claim would be viewed as mala fide filed to avoid payment of maintenance to the wife. It has been further submitted that the mere obtaining of the decree for restitution of conjugal rights by the husband will not suggest that the wife has withdrawn from his society without reasonable cause or excuse. Husband is not shown to have called upon the wife through the process of executing the decree that she should be called upon to resume conjugal society. It has been submitted that if the husband had sought the execution of the decree and prayed that the wife be called upon to resume conjugal society with him and the wife had refused to resume conjugal society with him without any plausible cause, it could have been said that the withdrawal from the society of the husband on her part was unjustified and while husband was ready to take the wife to the matrimonial home. Husband, to my mind, has not called upon the wife to resume conjugal society with him after he had obtained the decree of restitution of conjugal rights and therefore, it cannot be said that the wife had withdrawn from his society without reasonable cause or excuse. In the execution proceedings also the wife could urge that her withdrawal from the society of the husband was for sufficient cause or excuse, more particularly when it was an ex parte decree.

In my opinion, in the facts and circumstances of the case, the obtaining of the decree for restitution of conjugal rights by the husband would have no effect on the wife''s claim to maintenance.

Learned Counsel for the petitioner submitted that the wife is M. Com., B. Ed. She was posted in K.V.M. School, Ludhiana and was thus gainfully employed. Learned Counsel for the respondent, on the other hand, submitted that her services were terminated in May, 1995 and since after May, 1995, she is not employed anywhere. It was further submitted-that she has shares and Bank accounts. Suffice it to say, there is no evidence that she is in possession of the share certificates or the Bank pass books and cash books. She never operated the Bank account. Husband is gainfully employed. On his own showing, he stated that he is earning Rs. 2,000/ - per month. It is generally seen that where a person is called upon to discharge his liability, he understates his income. Sanjay Chopra is liable to maintain his Wife whom he has married. Liability to maintain the wife arises from the very concept of marriage. Maintenance allowed to the wife and the child is not on higher side. So, this revision fails and is dismissed.