Smt. Sapna Shrivastava vs Shiv Om Shrivastava

This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 6/9/2014 passed by the Principal Judge,

Family Court, Guna in M.Cr.C. No.83/2014, by which the application filed by the applicant under Section 125 of Cr.P.C. has been dismissed.

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

the ground that she is the legally wedded wife of the respondent having married to him on 13/4/2012 as per Hindu rites and rituals. Immediately

after the marriage the respondent started harassing the applicant because of non-fulfillment of their demand of dowry. The respondent and his

family members started passing taunts and harassing the applicant. Under compulsion and by beating the applicant, they also obtained signatures of

the applicant on various documents and stamp papers. Whenever the applicant requested the respondent to allow her to go to her parents house,

she was not allowed by the respondent. When the brother and the uncle of the applicant had come to take her with them, then the respondent had

misbehaved with them and refused to send the applicant with them. With great difficulties, after obtaining the signatures of the applicant on some

written documents and stamp papers as well as the signatures of her brother and uncle the applicant was allowed to go back to her parents'' home.

The applicant is an unemployed lady and has no source of income and is unable to maintain herself, whereas the respondent belongs to a high class

society. The respondent is having private house and irrigated lands. He is a practicing lawyer and his monthly income as a lawyer is around

Rs.20,000/- per month. The total income of the respondent is around Rs.8-10 lacs per year and, therefore, a prayer was made for grant of

Rs.20,000/- per month by way of maintenance.

The respondent filed his reply and denied the allegations. It is mentioned that on 25/6/2012 the respondent was out of station and when he came

back, then he come to know that the applicant has gone to her parents'' house on the pretext that her father is not keeping well. The respondent

went to her parents'' house on 8/7/2012 for taking her back, but she refused to come back. The allegations of harassment or ill-treatment were

denied. The allegations of obtaining signatures on the stamp papers or some written documents were also denied. It was mentioned that the

respondent is ready and willing to keep the applicant with him and accordingly, he has also filed an application under Section 9 of the Hindu

Marriage Act. It was further stated that the respondent is seriously ill for the last about one year and, therefore, he is not able to practice as a

lawyer.

It appears that the trial court by order dated 19/2/2013 had directed the respondent to pay Rs.2,500/- per month by way of maintenance. On

6/6/2014 the counsel for the respondent pleaded no instruction and since the respondent was also not present, therefore, he was proceeded ex

parte. The evidence of the applicant and her witnesses were recorded and the case was fixed for final arguments. On 7/6/2014 an application was

filed by the respondent for setting aside the ex parte proceedings. It was mentioned that the respondent has undergone an operation of his spinal

cord and the doctor has advised him bed rest for two months and accordingly, by order dated 1/7/2014 the application for setting aside the ex

parte proceedings were allowed on payment of cost of Rs.1,000/- and fixed the case for crossexamination of the applicant and her witnesses.

Thereafter, again the respondent and his counsel did not appear before the trial court and also did not deposit the cost as directed by the trial court

by order dated 1/7/2014 and accordingly, the trial court by order dated 2/9/2014 heard the final arguments and passed the final order on

6/9/2014 dismissing the application under Section 125 of Cr.P.C.

Challenging the order dated 6/9/2014 passed by the Principal Judge, Family Court, Gwalior in M.Cr.C. No.83/2014, the present revision has

been filed.

In the memo of revision it has been averred that the trial court has committed a mistake in dismissing the application. Merely because the wife is

a qualified lady would not ipso facto dis-entitle her to claim maintenance from her husband because it is the personal obligation of the husband to

maintain his wife. The conduct of the respondent was ignored by the trial Court because in the proceedings under Section 9 of Hindu Marriage Act

the moment the applicant appeared in the said proceedings, the respondent did not appear before the trial Court and got the proceedings

dismissed for want of prosecution.

The counsel for the respondent had appeared and argued the matter. The case was heard finally and reserved for delivery of judgment by order

dated 4/1/2018. On 5/1/2018 the counsel for the respondent has supplied a copy of the written reply. In the reply it was mentioned that the

respondent has also got a notice published in the newspaper on 30/3/2014 with regard to the pendency of the proceedings under Section 9 of

Hindu Marriage Act. Because of the injury sustained by him on his spinal cord, he is unable to walk. He has no source of income. The respondent

has no cases to appear and has no standing in the Bar. He has no independent source of income and he is undergoing the treatment. Some

documents have also been filed along with the reply. The documents show that the respondent had undergone some treatment which is reproduced

below:-

Screening whole spine (sagittal T2WI) shows mild posterior bulging of C4-C5, C5-C6 & C6-C7 intervertebral discs, indenting the anterior thecal

sac. Linear thin intramedullary hyperintense signal is seen involving dorsal spinal cord extending from D6 to D9 levels, suggestive of prominent

central spinal canal (about 1.5 mm diameter).

OPINION: The MR findings reveal;s:

* Posterior protrusion of L3-L4 intervertebral disc, causing marked canal stenosis and compression of bilateral traversing L4 nerve roots with

narrowing of neural foramina, abutting bilateral traversing L3 nerve roots.

* Diffuse posterior bulging of L2-L3 intervertebral disc, causing canal stenosis and compression of bilateral traversing L3 nerve roots.

* Diffuse posterior bulging of L5-S1 intervertebral disc, indenting anterior thecal sac with narrowing of neural foramina, compressing bilateral

traversing L5 nerve roots.

Heard the learned counsel for the respondent and perused the record.

The trial Court has rejected the application filed by the applicant under Section 125 of Cr.P.C. on various grounds including that prior to

marriage the applicant was working as a guest faculty and after engagement under the pressure of the respondent she has left the job. Since the

applicant is a literate lady and can obtain a job and nothing has been mentioned either in the application or in her evidence that she has ever tried to

obtain any job and, therefore, she cannot be allowed to sit idle in the house and claim maintenance from her husband. It is further mentioned that

the respondent has mentioned that he is not well for the last one year and, therefore, he is not able to practice as an Advocate and some

documents have also been filed and he has also mentioned in his reply that he is still ready and willing to keep the applicant with him. It was also

mentioned that since the respondent has filed an application under Section 9 of the Hindu Marriage Act, therefore, it is clear that in fact it is the

applicant who has left her matrimonial house without any reasonable reason and accordingly, the application was dismissed.

So far as the question of entitlement of the applicant to receive the maintenance amount is concerned, she has specifically stated in her evidence

that after the marriage, the respondent and his family members started passing taunts and the respondent also started beating her on the issue that

sufficient dowry has not been given. She was forced to sign several documents and stamp papers. Rajendra Shrivastava (PW-2) has stated that

the applicant is his niece. As the financial condition of the father of the applicant was not good, therefore, the marriage expenses were borne by all

the brothers. He also stated that when he and the brother of the applicant went to the matrimonial house of the applicant to take her back, then the

respondent had misbehaved with him and with great difficulties after obtaining the signatures on several papers the applicant was allowed to

accompany this witness. As already pointed out that the respondent was proceeded ex parte and, therefore, he has not cross-examined the

applicant. The ex parte proceedings were set aside on payment of cost of Rs.1,000/- and the respondent did not avail that opportunity and even

did not deposit the cost and did not appear for cross-examining the applicant and her witnesses. Under these circumstances, the Court was left

with no other option but to proceed ex parte against the respondent as the respondent has neither cross-examined the applicant and her witnesses

nor lead any evidence in his support, therefore, the reply filed by the respondent cannot be taken note of because there is nothing on record to

show that the respondent was ever ready and willing to keep the applicant with him.

So far as filing of an application under Section 9 of the Hindu Marriage Act is concerned, it is clear that the respondent is an Advocate by

profession. The application under Section 125 of Cr.P.C. was filed on 3/10/2012, whereas the application under Section 9 of the Hindu Marriage

Act was filed subsequent thereto. On 29/4/2013 the counsel for the respondent pleaded no instruction in the proceedings under Section 9 of the

Hindu Marriage Act, therefore, the said case was dismissed in default. Another application under Section 9 of the Hindu Marriage Act was filed by

the respondent on 24/6/2013. Thus, it is clear that the sole intention of filing the proceedings under Section 9 of the Hindu Marriage Act was to

keep those proceedings pending in order to show willingness of the respondent to keep the applicant with him. In the written reply, which has been

filed by the respondent on 5/1/2018, it is mentioned that the respondent is facing trial under Sections 498-A, 506 of IPC as well as under the

Protection of Women from Domestic Violence Act. In the reply also it is nowhere mentioned that as to what has ultimately transpired in the

proceedings under Section 9 of the Hindu Marriage Act. Thus, it is not known that whether the application filed by the respondent under Section 9

of the Hindu Marriage Act is still pending or it has been decided. Further, the respondent has taken a stand that he had suffered some injury on his

spinal cord and, therefore, he is unable to even walk. Alongwith the written reply, which has been filed on 5/1/2018, the applicant had merely filed

the MRI report dated 11/2/2014 and a discharge summary dated 16/2/2014. No other document of his treatment has been filed by the

respondent. Thus, it is not clear that after his discharge from the hospital on 16/2/2014 whether the respondent is still undergoing any treatment or

not. Since no other document has been filed by the respondent even after the case was finally heard on 4/1/2018, it appears that the respondent is

not undergoing any treatment after 16/2/2014, otherwise he would have certainly filed the prescription or any other document to show that he is

still undergoing the treatment and is unable to perform the work of daily need. He has also not filed any document from the Bar Association to

show that he is not practicing as a lawyer after sustaining injury on his spinal cord. There is no document to show that he has ever got the licence

suspended from the Bar Counsel of Madhya Pradesh. Thus, it is clear that it is incorrect to say that the respondent is unable to perform the work

of his daily routine and there is also nothing on record to show that he is not doing his normal professional work as an Advocate. Further, from the

written reply, it is not clarified that when if he is not earning anything, then how he is surviving and who is bearing his expenses? Thus, this Court is

of the view that it is incorrect to say that the respondent is not able to work of his daily routine or he is not practicing as an Advocate.

So far as the findings given by the court below that since the applicant is an literate lady and she was working as a guest faculty prior to her

engagement, therefore, she has to work for her survival and she cannot claim maintenance from her husband is concerned, the said observation

does not appear to be correct. Merely because the wife can earn something for her survival would not be sufficient to refuse maintenance. It is the

personal obligation of the husband to maintain his wife. Once the respondent himself had forced the applicant to leave the job of guest faculty, then

he cannot compel the applicant to work for her survival after her ouster from her matrimonial house. As the allegations of harassment have not

been denied by the respondent by leading evidence, even in the written reply it has been admitted by the respondent that he is facing trial under

Section 498-A of IPC, this Court is of the view that the applicant had a reasonable reason for residing separately from the respondent and

accordingly, she is entitled for maintenance.

So far as the quantum of maintenance is concerned, as this Court has already held that the respondent is working as an Advocate and he has

failed to prove that because of certain medical complications, he is still unable to perform the work of his daily routine and he has also failed to

prove that he is not practicing as a lawyer.

Thus, considering the price index, cost of the articles of daily needs, inflation rate and the status of the parties, this Court is of the view that the

applicant is entitled for the maintenance @ Rs.3000/- per month. The maintenance amount shall be payable from 6/9/2014, i.e. the date of the

order passed by the Court below.

Consequently, the order dated 6/9/2014 passed by the Principal Judge, Family Court, Guna in M.Cr.C. No.83/2014 is hereby set aside.

Accordingly the revision is hereby allowed. No order as to costs.