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Madhya Pradesh High Court

Nitin Shivhare vs Smt. Anjali Shivhare on 7 December, 2017

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                      CRR 564/2017
          Nitin Shivhare vs. Smt. Anjali Shivhare & Anr.

Gwalior, dtd. 07/12/2017

        Shri Prashant Sharma, Counsel for the applicant.
        Shri Sanjay Kumar Mishra, Counsel for the respondent

no.1.

This Criminal Revision under Section 397/401 of Cr.P.C. has been filed against the order dated 25-4-2017 passed by Additional Principal Judge, Family Court, Gwalior in M.Cr.C. No.41/2013 by which the application filed by the respondents under Section 125 of Cr.P.C. has been allowed and the applicant has been directed to pay Rs.15,000/- and Rs.5000/- per month by way of maintenance to the respondents and an additional amount of Rs.50,000/- towards the educational expenses of respondent no.2. It has also been directed that the applicant shall bear all the future educational expenses of the respondent no.2.

The necessary facts for the disposal of the present application in short are that the respondents filed an application under Section 125 of Cr.P.C. against the applicant. The undisputed facts are that the applicant and the respondent no.1 were married to each other on 11-2- 2008 and the respondent no.2 has born out of the wedlock on 20-3-2009 and from 8-10-2009, the respondents are residing separately from the applicant.

It is alleged that from the date of marriage, the applicant and his family members started harassing and treating the respondent no.1 with cruelty because their demand of Honda City Car was not fulfilled. The applicant and his family members used to pass taunts for bringing less dowry. On 20-3-2009, the respondent no. 2 was born.

Even the delivery expenses were borne by the father of the respondent no.1. When the respondent no.1 came back to her matrimonial house, then the applicant and his family members again started harassing her on the question of not bringing sufficient dowry and Honda City Car. As the respondent no.1 had given birth to a female child, therefore, She was harassed on that ground also. On 8- 10-2009, She was turned out of her matrimonial house and was left in the house of her father and from thereafter, She is residing in her father's house. The applicant filed an application under Section 9 of Hindu Marriage Act, and the said application was withdrawn however, the respondent no.1 was ready and willing to go back to her matrimonial house. On 3-11-2010, at about 7 P.M., the applicant came to the house of the father of the respondent no. 1 and expressed that since, his sister has come and She wants to see the respondent no.2 and has also brought certain gifts, therefore, the respondent no.1 went back to her matrimonial house where again she was harassed and beaten on the question of Honda City Car. It was alleged that the respondent no.1 has no independent source of income and is unable to maintain herself. The applicant is working on the post of Junior Telecom Officer and is drawing a monthly salary of Rs. 45,000/-. Thus, an application for grant of maintenance was filed.

During the pendency of the application, re-conciliation proceedings were taken up, and in that proceeding, the respondent no.1, subject to her right to receive maintenance, expressed that if the applicant is ready to compromise, then She is also ready to compromise. However, the applicant refused to compromise the matter 3 as he is being harassed physically and mentally by the respondent no.1 and expressed that he would abide by the judgment of the Court.

The applicant filed his reply and denied the allegations. It was alleged that in the proceedings under Section 9 of Hindu Marriage Act, the respondent no.1 agreed to stay with the applicant and when the applicant went to her father's house in order to take her back, she started misbehaving with the applicant and expressed that She doesnot want to stay with the applicant and had given a false undertaking before the Court. She also threatened that She would get the applicant and his family members, implicated in the criminal cases. It was further stated that the respondent no.1 has independent source of income and her annual income is Rs.2,10,000/- per annum. It was further stated that the behavior of the respondent no.1 was cruel towards the applicant and his family members. It was alleged that on 1-1-2011, the respondent no.1 came to the house of the applicant along with 3-4 anti social elements and started using filthy language. She also threatened that in case the door is not opened, then She would break open the door. She also said to her mother-in-law, that She has illicit relations with the applicant. On 14-2-2011, the respondent no.1 sent a notice through her lawyer in which the allegations of illicit relations between the applicant and his mother and sister as well as with his maid servant were leveled. A report was lodged for offence under Section 498-A of I.P.C. and the allegations were found incorrect by the police, but suppressing this fact, the respondent no.1 filed a criminal complaint.

The Trial Court after recording evidence and hearing 4 both the parties, allowed the application filed under Section 125 of Cr.P.C. and directed the applicant to pay Rs. 15,000/- and Rs. 5000/- per month to the respondents respectively. The applicant was also directed to pay Rs. 50,000/- towards the educational expenses of the respondent no.2 during the pendency of the application and also directed the applicant to bear all future educational expenses of the respondent no.2.

It is submitted by the Counsel for the applicant that the Court below has committed material illegality by awarding maintenance amount to the respondent no.1. It is submitted that in fact, it is the respondent no.1 who is residing separately without any reasonable reason. It is further submitted that his salary has been wrongly assessed and the liabilities of the applicant have not been taken into consideration. It is further submitted that the blanket order of bearing the future educational expenses of the respondent no.2 has been wrongly passed.

Per contra, it is submitted by the Counsel for the respondents that since, the paternity of the respondent no.2 has not been in dispute, therefore, the applicant is under statutory obligation to maintain the respondent no.2. So far as the respondent no.1 is concerned, several litigations have taken place between the parties, and on several occasions, the matter was compromised and the respondent no.1 voluntarily went to her matrimonial house but every time, she was harassed and treated with cruelty on the question of less dowry and demand of Honda City Car. It is further submitted that the Trial Court has rightly assessed the maintenance amount and further it is the statutory obligation of the applicant to maintain his 5 daughter. So far as the future educational expenses are concerned, they may be quantified at Rs. 50,000 per year.

Heard the learned Counsel for the parties. So far as the entitlement of the respondent no.2 to receive the maintenance amount is concerned, since, the applicant has not disputed the paternity, therefore, She is entitled for maintenance amount. The applicant has also admitted that he has not paid anything towards the educational expenses of the respondent no.2. It is submitted by the Counsel for the applicant, that a blanket order directing to bear the future educational expenses of the respondent no.2 is unwarranted. It is submitted that the applicant can be compelled to bear the educational expenses as per his financial status. It is submitted by the Counsel for the respondent that the apprehension expressed by the Counsel for the applicant is unrealistic. The minimum expenses which are required to be borne for the education of the child can be tentatively assessed, therefore, it is submitted by the Counsel for the respondent, that an amount of Rs. 50,000/- per year may be quantified for bearing the future educational expenses of the respondent no.2. This proposal made by the Counsel for the respondents is accepted by the Counsel for the applicant. Thus, the direction given by the Trial Court to the effect, that the applicant shall bear the future educational expenses of the respondent no.2 is hereby quantified and it is directed that the applicant shall pay an amount of Rs. 50,000/- per year which shall be payable by 15th January of every year towards the future educational expenses of the respondent no.2.

So far as the maintenance of Rs. 5000/- per month to the respondent no.2 is concerned, since, the paternity of the respondent no.2 has not been disputed by the applicant, therefore, the said direction passed by the Court below is affirmed.

Now, the moot question for determination is the entitlement of the respondent no.1 to receive the maintenance amount and the quantum of the maintenance. It is clear that several litigations are going on between the parties, including that of offence under Section 498-A of I.P.C. A residence order under the Protection of Women from Domestic Violence Act has also been passed. However, still the applicant has not allowed the respondent no.1 to stay in her matrimonial house. So far as the cruel behavior of the respondent no.1 with the applicant and his family members is concerned, it is the claim of the respondent no.1 that the allegation of sending a notice with indecent language and the allegation of illicit relations between the applicant and his mother, sister and maid servant is false. Even the respondent no.1 has filed a complaint against the applicant, and the police under the order of the Magistrate under Section 156(3) of Cr.P.C. has registered the F.I.R.against the applicant. Considering the litigations pending between the parties, this Court is of the view that the Trial Court did not commit any mistake in holding that the respondent no.1 is entitled for maintenance amount.

So far as the quantum of maintenance amount is concerned, it is submitted by the applicant that the pay slip of the month of April 2017 has been filed, according to which the gross income of the applicant is Rs. 76,559/- per 7 month.

The Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan reported in (2015) 5 SCC 705 has held as under :-

''15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun (1997) 7 SCC 7 has held as follows: (SCC p. 12, para 8) "8. ... The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."

16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC 316, it has been ruled that: (SCC p. 320, para 6) "6. ... Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636 ."

17. 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.

18. 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 On Line Del para 7)

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.'' The applicant is working as Deputy Manager, B.S.N.L. Even according to the Salary Slip of April 2017, his gross income is Rs.76,559/-. it is the contention of the applicant that the respondent no.1 was working as Financial consultant and is earning more than Rs. 10,000/- per month. It is submitted by the Counsel for the respondent no.1 that earlier the respondent no.1 was working as Financial Consultant, but now She is not working and is completely unemployed having no source of income. Considering the submissions, status of the parties, price index, prices of the goods of daily needs, etc. this Court is of the considered opinion that the monthly maintenance of Rs.15,000/- awarded by the Court below to the respondent no.1 cannot be said to be on a higher side.

Accordingly, the order dated 25-4-2017 passed by Additional Principal Judge, Family Court, Gwalior in M.Cr.C. No. 9 41/2013 is affirmed subject to modification as mentioned in the previous paragraph of this order.

The application is finally disposed of with the aforementioned modification.

(G.S. Ahluwalia) Judge *MKB* MAHENDRA KUMAR BARIK 2017.12.11 19:19:42 +05'30'