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Judgment
This criminal revision under Section 397/401 of Cr.P.C. has been filed against the order dated 16.5.2017 passed by Principal Judge, Family Court,
Morena in Case No.18/2014 by which the application filed by the respondent under Section 125 of Cr.P.C. has been allowed and the applicant has
been directed to pay maintenance @ Rs.5000/- per month from the date of application and also an amount of Rs.2000/- has been granted by way of
litigation expenses.
The necessary facts for the disposal of the present revision in short are that, on 21.3.2013 the respondent filed an application under Section 125 of
Cr.P.C. on the ground that the respondent was married to the applicant as per Hindu Rites and rituals on 3.12.2011. An amount of Rs.2,51,000/- was
given in cash along with various domestic items including jewelry. Since the applicant and his family members were not satisfied by the dowry given
by the father of the respondent, therefore, they used to harass her mentally as well as physically and they were demanding additional dowry. On
18.11.2012, the applicant left the respondent to her father's house after assaulting her and threatened that in case if she comes back without the gold
ornaments and a car, then she would be killed. It was further alleged that prior to ousting the respondent from her matrimonial house, the applicant and
his family members had snatched her entire ornaments and because of beating the respondent had also sustained injuries. It was further alleged that
the applicant is a healthy man and is running an electric shop and after deducting his expenses he is earning a net profit of Rs.30,000/- per month and
his father has agricultural lands in village Kuwakhera, Rajrai and Paliya and the total value of the said agricultural land is about Rs.5-6 crores. Apart
from that the applicant has three residential houses and three shops in Agra and is earning Rs.40,000/- and Rs.15,000-16,000/- by way of rent
whereas the respondent do not have any source of income and she requires Rs.25,000/- per month by way of maintenance as well as Rs.5,000/-
towards litigation expenses.
The notices were issued to the applicant. However, on 29.5.2014 it was observed by the Trial Court that the registered notice sent to the applicant has
been received back with an endorsement that he is not available at the house. Thus, it was observed by the Trial Court that it appears that the notice
has been served upon the applicant and, therefore, he was proceeded ex parte. The ex parte evidence of the respondent was recorded and the
application filed under Section 125 of Cr.P.C. was allowed by order dated 2.7.2014. It appears that thereafter the applicant filed an application under
Section 126(2) of Cr.P.C. for setting aside the ex parte order which was allowed by order dated 25.2.2015 and accordingly the case was restored to
its original file.
The applicant filed his reply and accepted the factum of marriage. All other adverse allegations were denied. It was stated by the applicant that the
marriage was performed like an ordinary marriage and whatever ornaments were given to the respondent at the time of marriage are still with the
respondent. The allegation of demand of dowry and harassment was also denied. It was also denied that on 18.11.2012 the respondent was left in her
parental house after beating her. On the contrary, it was stated by the applicant that in fact the respondent is residing in her parental house as per her
own sweet will. It was further stated that the respondent had never performed her duties as a wife. On 22.11.2012, without informing the applicant
and his family members she went to her parental house along with the ornaments as well as the entire stridhan. On several occasions, he tried to bring
the respondent back but the parents of the respondent clearly refused to send her back. It was denied that the applicant is having any electric shop
from which he is earning Rs.30,000/- per month. The land in the name of his father was also denied. This fact was also denied that the applicant is
having three residential houses and three shops from which he is earning Rs.44000-45000/- per month. This fact was also denied that the respondent
does not have any source of income. On the contrary, it was alleged that by running the tuition classes the respondent is earning Rs.15,000/- per
month. It was further alleged that the applicant is still ready and willing to keep the respondent with him. The applicant is an unemployed person and is
dependent on his parents. The respondent has also filed an application under the Protection of Women From Domestic Violence Act. Accordingly, a
prayer was made to reject the application filed by the applicant under Section 125 of Cr.P.C.
The respondent examined herself as PW-1, her father Laxmi Narayan Sharma as PW-2.
The applicant examined himself as DW-1.
The Trial Court by order dated 16.5.2017 allowed the application and awarded an amount of Rs.5000/- per month from the date of the application i.e.
21.3.2013 and the litigation expenses of Rs.2,000/- was also awarded.
Challenging the order passed by the court below, it is submitted by the counsel for the applicant that in fact the respondent is more educated than that
of the applicant and because of that she was unable to adjust herself in her matrimonial house. It is further submitted that the monthly income of the
applicant is only Rs.5,000/- per month and by awarding monthly maintenance at Rs.5000/- per month, the Trial Court has in fact awarded 100% of the
income of the applicant by way of maintenance. It is further submitted that the Trial Court should not have awarded the maintenance from the date of
application.
Per contra, it is submitted by the counsel for the respondent that in fact it is the applicant who was cruel towards the respondent. In different
proceedings pending between the parties, the respondent went to her matrimonial house by way of reconciliation but on all occasions because of the
behavior of the applicant, she was turned out of her matrimonial house. It is further submitted that it is denied that monthly income of the applicant is
only Rs.5000/-. It is also denied that as the respondent was more qualified than that of the applicant, therefore, she was unable to adjust herself in the
matrimonial house. It is further submitted that the respondent is merely a graduate. Since the applicant has failed in Class 12th, therefore, it cannot be
said that the respondent was highly qualified in comparison to the applicant. Furthermore, it is submitted by the counsel for the respondent that even
the applicant has not stated either in his written reply or in his evidence that the respondent is not able to adjust herself in her matrimonial house
because of difference in educational qualification.
It is further submitted by the counsel for the respondent that since it would be apparent from the order sheets of the Trial Court that it is the applicant
who is responsible for the delayed disposal of the application filed under Section 125 of Cr.P.C., therefore, the Trial Court did not commit any mistake
in awarding maintenance from the date of the application.
Heard the learned counsel for the parties.
The contention of the applicant that since the respondent is more educationally qualified than the applicant, therefore, she was unable to adjust herself
in the matrimonial house is not supported by evidence on record. Neither it is contended by the applicant in his written reply nor it is stated by the
applicant in his evidence. Even otherwise, according to the statement of the applicant he had failed in Class-12th whereas the respondent has passed
graduation.
Under these circumstances, it cannot be said that there is a wast difference between the educational qualification of the parties. Furthermore without
there being any pleading and without there being any evidence to the effect that the respondent was unable to adjust herself in her matrimonial house
because of educational status, the submissions made by the counsel for the applicant cannot be accepted.
So far as the income of the applicant is concerned, none of the parties have filed any document to establish the income of each other. The applicant in
his examination-inchief has stated that for the last few months he is driving the ambulance of Pushpanjali Hospital and is earning Rs.5000/- per month
by way of salary. However, the applicant has not placed any document issued by Pushpanjali Hospital to show that he is working as a driver of the
ambulance and is earning Rs.5000/- per month. Similarly, except by saying that the respondent is earning Rs.15000-16000/- per month by giving
tuition to the children, no other material has been placed on record by the applicant.
So far as the averments made by the respondent with regard to the income of the applicant is concerned, she has stated that the applicant is having an
electric shop and is also having three houses and three shops which have been let out and is earning Rs.45000-46000/- per month by way of rent from
the said premises. Similarly, no document has been placed on record by the respondent to support that contention. Thus, it is clear that both the parties
have not succeeded in establishing the income of the applicant beyond reasonable doubt but at the same time it can be held that the applicant has tried
to suppress his income.
Be that as it may.
The Supreme Court in the case of Shamima Farooqui vs. Shahid Khan reported in 2015 (5) SCC 705 has held as under:-
“14. …......If the husband is healthy, ablebodied and is in a position to support himself, he is under the legal obligation to support his wife, for
wife’s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.
This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain
the wife due to financial constraints as long as he is capable of earning.
In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila
Rani Chander Prakash (1968 SCC OnLine Del 52) wherein it has been opined thus: (SCC OnLine Del para 7)
… an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and
child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for
such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge
his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption
will be easily permissible against him.
From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of
wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes
her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the
misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing
legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.â€
Thus it is clear that where the husband is able bodied person and there is nothing on record that he has any additional financial liability and considering
the fact that the wife is also entitled to enjoy the same status which she would have otherwise enjoyed in her matrimonial house as well as considering
the price index, inflation rate and the prices of goods of daily needs, it cannot be said that the amount of Rs.5,000/- per month awarded by the Trial
Court by way of maintenance is on a higher side.
Accordingly, the maintenance amount of Rs.5000/per month fixed by the Trial Court is hereby affirmed.
It is next contended by the counsel for the applicant that the Trial Court has committed material illegality by awarding maintenance from the date of
the application i.e.21.3.2013.
Considered the submissions made by the counsel for the applicant.
It appears that after the ex parte order dated 2.7.2014 was set aside, the respondent filed an application for payment of maintenance amount for the
intervening period of 2.7.2014 to 25.2.2015. The said application was allowed by order dated 5.3.2015. Being aggrieved by the said order, the applicant
filed a Criminal Revision No.262/2015. This Court by interim order dated 22.4.2015, passed the following order.
“22.04.2015 Shri Atul Gupta, learned counsel for the petitioner.
Let notice be issued to the respondent on payment of PF within three working days failing which this petition shall stand dismissed without reference
to the court.
Meanwhile, till the next date of hearing, operation and effect of impugned order dated 5.3.2015 passed in Case No.331/2014 shall remain stayed
subject to the petitioner depositing the amount in question, comprising of the arrears of the interim maintenance for the period from 2.7.2014 to
25.2.2015, with the trial Court which shall not be disbursed to the respondent wife. This order shall be further subject to the condition that petitioner
shall pay tentative interim maintenance of Rs.3,000/- per month so that the respondent wife can sustain.
The above said amount of interim tentative maintenance should be paid on 27th of April, 2015 and on 27th of every subsequent month, failing which
this order shall stand vacated without reference to the court.â€
From the order sheets of the Trial Court, it is clear that the application under Section 125 of Cr.P.C. was filed on 21.3.2013 and the notices were
issued to the applicant. Inspite of various process fee paid by the respondent, the notices could not be served on the applicant. Even the Trial Court
had called the explanation from the concerning Clerk for delayed issuance of notices. By order dated 17.9.2013, the Trial Court had even directed that
the notice be served through Superintendent of Police, Morena. Even the explanation of the SHO of the concerning police station was also called and
ultimately by order dated 29.5.2014 the Trial Court proceeded ex parte against the applicant considering deemed service of notice and consequently an
ex parte final order was passed by the Trial Court on 2.7.2014. It is only after the ex parte order was passed, the applicant rushed to the Court and
filed an application under Section 126(2) of Cr.P.C. and the application was allowed and the matter was restored to its original file on 26.2.2015. On
8.4.2015, the applicant filed his reply to the application for maintenance under Section 125 of Cr.P.C. on 23.6.2015. Thereafter the proceedings were
taken up for reconciliation but the said proceedings were dropped and the application for grant of interim maintenance was rejected by the Trial Court
on 27.6.2015 in the light of interim order dated 22.4.2015 passed in Criminal Revision No.262/2015. By order dated 27.7.2015, the case was fixed for
recording evidence of the respondent on 20.8.2015. The respondent was present however, as she was not feeling well, therefore, she went back and
the case was adjourned to 27.8.2015. On 27.8.2015, the respondent was present but the case was adjourned at the request of the applicant. The case
was then adjourned to 10.9.2015. On 10.9.2015, the respondent as well as the applicant were present but since the Court was vacant, therefore, the
case was adjourned. On 28.9.2015, the applicant sought time to deposit the interim maintenance amount as directed by the High Court. Another
opportunity was given to the respondent to examine the witnesses and the case was adjourned to 26.12.2015 and thereafter it was adjourned to
18.1.2016. On 18.1.2016, the respondent was present but the case was adjourned at the request of the respondent. On 27.1.2016, the respondent was
examined and the case was adjourned for further cross-examination of the respondent on 25.2.2016. On 25.2.2016, the respondent was present but
since the counsel for the respondent was not present, therefore, the case was adjourned for crossexamination and the case wad adjourned to
28.3.2016 and on that day the cross-examination of the respondent was over. The case was adjourned to 27.4.2016 and on that day the witness of the
respondent was present. However, as the applicant had not paid the amount of interim maintenance to the respondent, therefore, the case was
adjourned to 26.5.2016. On 26.5.2016, some amount of interim maintenance was paid and the respondent was directed to keep her witnesses present
and the case was adjourned to 27.6.2016. On 27.6.2016, it was expressed by the respondent that she want to examine her father as a witness
whereas the counsel for the respondent has suffered a paralytic stroke, therefore, a short time was sought for keeping the witness of the respondent
present before the Court. On 29.8.2016, the respondent was permitted to change her counsel and the case was fixed for 27.9.2016. On 27.9.2016, the
witness of the respondent was present, however the case was adjourned to 26.10.2016. On 27.10.2016, the witness of the respondent was examined
and cross-examined. In the meanwhile, an interlocutory application was filed by the respondent that the applicant has not complied the order of the
High Court by which it was directed to the applicant to pay maintenance @ Rs.3000/- per month by way of interim maintenance. On 26.11.2016, the
respondent appeared along with the applicant as she had gone to her matrimonial house, on that day an advice was given to the parties that they
should live peacefully and harmoniously. As the respondent had started living with the applicant as his wife, therefore, the case was adjourned to
2.12.2016 and on the said date further opportunity was given to the parties. It appears that thereafter the respondent came back from her matrimonial
house and in the meanwhile the interim maintenance was deposited by the applicant on different dates and ultimately on 27.3.2017 the father of the
respondent was examined and cross-examined and the case was fixed for examination of applicant's witnesses. On 6.4.2017, the case was adjourned
at the request of the applicant and on 20.4.2017 he was examined and crossexamined and on 20.4.2017 he closed his evidence. Ultimately the final
arguments were heard on 8.5.2017 and on 16.5.2017 the final order was passed. Thus the order sheets of the Trial Court reveal that initially the
applicant had avoided service of notice and ultimately an ex parte order was passed thereafter the matter was restored to its original file. It appears
that in Criminal Revision No.262/2015 which was filed by the applicant before this Court it was directed by this Court by order dated 22.4.2015 that
the applicant shall pay Rs.3,000/- per month by way of tentative maintenance so that the respondent/wife can sustain and on different dates the case
was adjourned because of non-payment of the said interim maintenance. Thus it is clear that it cannot be said that only the respondent is responsible
for the delay in the disposal of the application. Thus, this Court is of the considered opinion that the Trial Court did not commit any mistake by directing
that the maintenance amount shall be payable from the date of the application. However, the amount of interim maintenance deposited by the
applicant from time to time shall be liable to be adjusted.
Accordingly, the order dated 16.5.2017 passed by Principal Judge, Family Court, Morena in Case No.18/2014 is hereby affirmed.
The revision fails and is hereby dismissed.