Madhya Pradesh High Court
Sunil Lodhi vs Smt.Vimlesh Lodhi on 13 February, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- CRR.No.110/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.110/2015
Sunil Lodhi
Versus
Smt. Vimlesh Lodhi
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Shri Sunil Kumar Jain, learned counsel for the applicant.
Shri Nitin K. Sharma, learned counsel for the respondent.
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ORDER
(13.2.2017) The applicant/husband is aggrieved by order dated 18.12.2014 passed in case No. 313/2014 by the Principal Judge, Family Court, Guna, whereby the application filed by the respondent/wife for granting of maintenance under Section 125 of Cr.P.C. has been allowed and the applicant has been directed to pay the maintenance amount of Rs. 2500/- per month to the respondent.
2. It is an admitted fact that marriage was solemnized between the parties on 24.04.2012 as per Hindu rituals and customs and the respondent is residing in her parental house at Fatehgarh, Tehsil and District Guna, Madhya Pradesh.
3. The facts giving rise to this revision application are that the respondent filed an application under Section 125 of Cr.P.C. against the present applicant on the ground that the applicant and his family members were persistently making demand of dowry and were ill treating her. Behavior of the applicant was cruel towards the respondent and on 11.02.2013 the applicant alleged to have assaulted the respondent and threatened her of dire consequences. Under these compelling circumstances, she was forced to live in her parental house. She is unable to maintain herself because she does not have -( 2 )- CRR.No.110/2015 any source of income and she is depending on her parents, whereas the applicant is having agricultural land measuring 30 bhigha and earn Rs. 5,00,000/- per annum from farming alongwith Rs. 1,50,000/- per annum from running of a milk dairy.
4. Per Contra, present applicant stated in his reply that neither from him nor by his family members demanded any dowry and any improper behavior has been done with the respondent. In fact, several times the applicant himself went to the parental house of the respondent to take her back but she refused to come alongwith him because as per the respondent, the applicant is very poor person and he is unable to fulfill her day to day requirements.
5. The application was allowed vide impugned order and the Court below has directed to the applicant to pay Rs. 2500/- per month as maintenance amount to the respondent. By feeling aggrieved by fixation of maintenance amount, the present revision application is preferred by the applicant/husband.
6. According to learned counsel for the applicant the Court below has committed manifest error in law by allowing the application for the reason that an application under Section 9 of Hindu Marriage Act,1955 was moved by the applicant before the Family Court at Shivpuri which was allowed vide judgment dated 10.12.2013 and a decree was drawn in favour of the applicant with direction to the respondent to start living with the applicant but despite that the respondent did not comply the decree passed by the District Judge, Shivpuri. The respondent is residing separately without any sufficient and valid reason. To be frustrated by the decree passed by the Family Court, the respondent managed to get registered a criminal case under section 498-A of IPC along with the Section 3 and 4 of Dowry Prohibition Act against the applicant. The applicant wants to live with the respondent and enjoy his married life but the -( 3 )- CRR.No.110/2015 respondent is denying to come and live with him. Hence, respondent has no right to get any amount by way of maintenance from the applicant.
7. Having considered the rival contention of the parties and on examining the record, it is clear that the contention of the applicant has forced in it because a decree for performing conjugal rights has been passed by the District Judge, Shivpuri on 10.12.2013 in pursuant to the application filed on behalf of the applicant but the respondent did not comply with the order and after receiving notice of the application under Section 9 of Hindu Marriage Act, the respondent has filed the application for maintenance as a counter measure.
8. It is also worthy of consideration that the reason for moving the application is the incident dated 11.12.2013 although no report has been lodged by the respondent against the applicant and no document has been brought on record to substantiate the submissions.
9. The paramount consideration of the application under Section 125 of Cr.P.C. is ability of the wife to maintain herself without assistance from her husband. The respondent has admitted in her cross-examination that she is working as labour with her parents and by this she is earning money. The respondent has also admitted that under the Protection of Woman from Domestic Violence Act, 2005, an application was preferred by her in which the Court has ordered that the applicant to pay Rs. 2500/- per month as maintenance. So, it cannot be said that the respondent has no source of her income.
10. The present respondent stated in her examination in chief that the applicant is having 30 bigha of agricultural land and by which he is earning Rs. 5,00,000/- per annum. Apart from that, he is having milk dairy and by which he is getting Rs. 1,50,000/- income per year but the applicant has denied these facts. The respondent has not filed any documents regarding -( 4 )- CRR.No.110/2015 the income of the applicant, therefore, the primary obligation to prove the income of her husband has not been discharged by the respondent. The Hon'ble Supreme Court in the case of Chaturbhuj Vs. Sitabai reported in (2008)2 SCC 316 has observed in the following manner:-
"Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife."
11. With the aforesaid discussion, this Court is of the view that the finding of the trial Court that respondent/wife has sufficient reason to live separately is not sustainable. To the contrary she is residing separately with her own will, therefore, she is not entitled for grant of maintenance under Section 125 of Cr.P.C. Thus, the order passed by the Court below is hereby set aside.
(S.K.Awasthi) Judge neetu