Deepak Bhist vs Megha Bhist And Others

Sharad Kumar Sharma, J

This is a husband's Revision, wherein, he has questioned the propriety of the judgment dated 3rd February, 2018, as passed in Misc. Criminal Case No. 84 of 2016, Megha Vs. Deepak by the Family Judge, Pauri Garhwal, while considering the application preferred by the respondent wife under Section 125 o the Cr.P.C.

As per the application, which was submitted by the respondent No. 1, before the Family Court on 6th September, 2016, there are few admitted facts between the parties that the marriage between the revisionist and respondent No. 1 was solemnized on 6th May, 2011, as per the Hindu rites and rituals. It is also an admitted fact that the spouses do not have any issue of their own rather they have adopted a girl child, who is of three years of age and who was initially staying with them as their daughter, now she is residing with respondent No.1.

On account of certain family disputes pertaining to the behaviour of the revisionist with respondent No.1, which has been alleged by the respondent No. 1 and with regard to the certain unsocial habits which was not very conducive and acceptable socially, she had filed an application under Section 125 of the Cr.P.C., for grant of maintenance of her and her daughter, contending thereof that because of the excessive atrocities exercised by the revisionist since 10th April, 2016, on account of a public misbehaviour and act derogating self prestige and misbehaviour with her, she has left the residence of the husband and has started residing at her grand mother's place. She has contended that while leaving the home, she has also lodged a complaint before the Police, for which, the counselling was conducted by the authorities, but, it resulted into futility. In order to claim a maintenance of Rs.10,000/- towards herself and Rs.10,000/- towards the daughter, she has pleaded in para 8 of the application under Section 125 of the Cr.P.C. that the revisionist is a Doctor, who is presently working in Primary Health Center Talwari, District Chamoli, and by virtue of the said engagement, he is earning a sum of Rs.48,000/- p.m. Apart from that, the pleading has been raised by the respondent that the husband is also engaged in a private practice, out of which, he is earning about Rs.25,000/- p.m. and thus, an overall income which is accruing to the husband is about Rs. 76,000/- from his engagement.

The revisionist has filed his written statement/objection to the application under Section 125 o the Cr.P.C. on 31st July, 2017, and had denied the allegations as raised in the application under Section 125 of the Cr.P.C., but, that may not be relevant at this stage to be considered because it was the case of the revisionist that as far as the applicant, the respondent No. 1 is concerned, she would not be entitled to get or claim any maintenance because since she herself being a well qualified lady and is running a business of physiotherapist and has got an establishment at Kotdwar, hence, she is having a regular source of income and is financially viable, and hence, she will not be falling within the ambit of criteria required to be considered for the grant of maintenance as contemplated under Section 125 Cr.P.C. Apart from it, as far as pleadings raised in the application under Section 125 of the Cr.P.C., itself, with regard to the quantum of the income accruing to the revisionist is concerned, the said fact has not been specifically denied by the revisionist rather the revisionist has contended that in response to the pleading of para 8 of the application, that he has never conducted any private practice at his official place of working, thus, income projected is on too excessive side. This mode of denial of para 8 cannot be treated as to be a specific denial of actual accrual of income beyond of income to him from private practice.

In these circumstances and after having gone through the judgment impugned where the fact that the respondent wife is already having an income from working as physiotherapist is a fact which has not been denied by respondent No. 1 by way of any pleading on record rather the revisionist has placed reliance on paper No. 29-kha, which has shown the photographs of the physiotherapist centre being conduced by the wife and he has submitted that out of the photograph which has been presented, shown from the said engagement, she is earning at least about Rs.10,000/- p.m.

The Family Court, while considering the determination of maintenance to be made payable towards the adopted daughter, the Court has held that looking to the amount of income which has been accruing to the husband revisionist, which has been assessed to be over Rs.1 lac p.m. is without any basis without any material and even beyond the pleading of respondent No.1 herself, because even according to the admitted pleading of the wife herself, she has only submitted that the income of revisionist happens to be of Rs.76,000/-p.m.

This fact of having an income of Rs.76,000/-, which is admitted by the respondent wife, the amount of compensation, which has been awarded @ Rs.10,000/- towards the child is on higher side for the reason that the said fixation has been done by the Court concerned assessing the income of the husband as to be Rs.1 lac and above that too beyond the admitted pleadings, which was adduced by the parties before the Family Court.

But, still taking a pragmatic view and also considering the fact that the wife respondent No. 1, who has adopted the daughter with her, since she is also an earning person and being mother is equally responsible to maintain her, more particularly, when it is a fact not disputed that she is also earning and once she is earning member of the family, she too owes a responsibility to maintain the child adopted by her along with her husband.

In that view of the matter, considering that the wife has got an accrual income due to her independent engagement as physiotherapist and also considering the fact that the very foundation of the determination of the maintenance since is based on the income accruing to the husband exclusively to be about Rs.1 lac, being contrary to the reasons which has been assigned in the impugned order, this Court is of the view that the wife too owes the responsibility to part with certain income which is accruing to her because of her engagement, has to contribute towards the maintenance of her adopted daughter.

In these circumstances, this Court is of the view that the amount of Rs. 10,000/- as determined for maintenance exclusively towards the child liable to be paid by revisionist deserves to be marginally reduced to Rs.8,000/- p.m. and balance maintenance thus reduced has to be met by wife from her income only.

For the reasons which has been given above, this Revision is partly allowed and the maintenance of Rs.10,000/- as has been awarded to be paid towards the child by the revisionist exclusively is reduced to Rs.8,000/- p.m.

Subject to the above observations, the Revision stands partly succeeded.