Shatrughna Upadhyay vs Neeti Upadhyay

J.K. Maheshwari, J.—This revision petition under Section 19(4) of the Family Courts Act, 1984 (for short "Act") has been filed by the applicant being aggrieved by the order dated 30.11.2011 passed by 2nd Additional Principal Judge, Family Court, Jabalpur in MJC No. 186/2007 thereby an amount of Rs. 2000/- per month has been awarded to non-applicant No. 1/wife and Rs. 1000/- per month to non-applicant No. 2/son towards maintenance allowing the application under Section 125 Criminal Procedure Code (for short "Cr.P.C.").

Undisputed facts of the case are that marriage of applicant was solemnized with non-applicant No. 1 on 15.6.2002 by Hindu sacrament at Jabalpur. Out of the said wedlock, non-applicant No. 2 was born on 30.5.2003. In the application under Section 125 Cr.P.C, it is alleged by non-applicant No. 1 that after solemnization of their marriage and giving birth to a child, the applicant started demanding Maruti Car and due to non-fulfillment of the same, non-applicant No. 1 was subject to cruelty & harassment. She was not allowed by her husband to meet their parents. She was subjected to threat to the extent of committing suicide & taking signature of the applicant. She started to reside separately since 2003 with their parents. Narrating various other incidents of cruelty & harassment, it is urged by the non-applicant No. 1 that now it is not possible to live with the applicant, who is earning Rs. 15000/- per month working in the capacity of an Agent in the establishment of Regional Transport Officer for registration of the vehicles. However, Rs. 5000/- per month by way of maintenance was preferred.

The applicant by filing reply has denied the averments as stated in the application under Section 125 Cr.P.C contending inter alia that no demand of Maruti Car has ever been made by the applicant and also no threat to commit suicide has been given to non-applicant No. 1. It is further stated that no cruelty, harassment & misbehaviour have been made with the family members of the non-applicant No. 1. The applicant is not working as an Agent in Regional Transport Office and having no such earning. The applicant is ready to keep his son (non-applicant No. 2) with him, therefore, prayer is made to reject the application. In the additional plea, it is said that the non-applicant No. 1 was not performing the duty towards his family and giving threat to commit suicide if she was persuaded to do such work. When there was no change then non-applicant No. 1 started to reside separately alongwith their parents. Complaint to that effect has been made by them and, therefore, the suit seeking divorce was filed at Ujjain, which was decreed. In such circumstances, it is further said that after passing of the decree, the applicant has solemnized second marriage and is residing with his second wife, therefore, the maintenance as prayed may be denied.

Learned Trial Court has considered the issue whether non-applicant No. 1/wife is residing separately without any sufficient reason or she refuses to live with the applicant. In this respect, considering the evidence brought on record, finding has been recorded by the Trial Court that after leaving his first wife, the applicant is residing with his second wife having kids from her and it is a sufficient ground for the non-applicant No. 1 to reside separately from the applicant. However, accepting the earning of the applicant Rs. 10000/- per month, the Trial Court awarded Rs. 2000/- per month to the non-applicant No. 1/wife & Rs. 1000/- per month to non-applicant No. 2/son towards maintenance.

Being aggrieved by the same, this revision petition has been preferred by the applicant.

Learned counsel for the applicant submits that it is a case wherein the marriage of applicant & non applicant No. 1 was solemnized on 15th June, 2002 and out of their wedlock, a child was born on 30th March, 2003. Since 2003 till date, the non-applicant No. 1/wife has been residing separately. However, the decree of divorce granted by the Court below remained unassailable. On expiry of the period of limitation for grant of decree for divorce, the applicant solemnized second marriage and is residing with his second wife and children. After a period of about three years of the marriage, the application seeking maintenance as filed by the non-applicants & allowed by the Trial court is not in accordance with law particularly after deserting the husband by the wife, such maintenance should not be allowed.

On the other hand, learned counsel for the non applicants has argued in support of the finding recorded by the Trial Court and urged that this revision petition may be dismissed.

After hearing learned counsel for the parties and on perusal of the facts of the present case, it is apparent that the marriage of the applicant was solemnized with the non-applicant No. 1 on 15.6.2002 at Jabalpur. It is also not in dispute that a child was born out of their wedlock on 30.5.2003. No legal evidence has been brought either by the applicant or by the non-applicants to establish the fact that sufficient ground to not to reside the husband with wife is available. Undisputedly, in favour of the applicant, ex-parte decree of divorce has been passed in the year 2005 at Ujjain since then application seeking maintenance is pending, which was allowed by the impugned order.

In the said sequel of the fact, it is to be examined that as per instinct of Section 125(4) Cr.P.C, if the wife is residing in adultery or without any sufficient reason separately with her husband or she refuses to live with her husband or if they are living separately by a mutual consent then maintenance can be refused.

In the present case, the applicant has not made out a plea of adultery against the non-applicant No. 1 and the fact wherein after solemnization of the marriage & giving birth to a child why the husband has not taken any steps to keep her wife is also remained unexplained. Evidence is missing to demonstrate that steps have been taken by the husband to keep her legally wedded wife with him. On the contrary, by filing a suit seeking divorce, ex parte decree was passed at Ujjain though the marriage of applicant & non-applicant No. 1 was solemnized at Jabalpur and the wife is residing at Jabalpur. After obtaining the said decree, the husband solemnized second marriage and is residing with second wife.

In the said sequel of facts, it cannot be accepted that without having any sufficient reason, the wife is residing separately or she has refused to live with her husband. It is not a case wherein the husband & wife are residing separately by a mutual consent. In such circumstances, the finding as recorded by the Trial Court allowing the application under Section 125 Cr.P.C and granting maintenance of Rs. 2000/- per month of the wife & Rs. 1000/- per month to the son cannot be said to be in excess to the jurisdiction of the Principal Judge, Family Court, Jabalpur.

In view of the foregoing discussion, in my considered opinion, this revision petition being devoid of merit is accordingly dismissed, subject to payment of cost of Rs. 5000/- paid by the applicant/husband to the non-applicant No. 1/wife.