Delhi District Court
Anita Devi vs Mahesh Kumar on 18 September, 2009
1 I N THE COURT OF Ms. VEENA RANI METROPOLITAN MAGISTRATE PATIALA HOUSE COURTS, NEW DELHI. CC Number:54/1 ( Date of filing :26022008) Anita Devi .....Petitioner Vs. Mahesh Kumar .....Respondent Police Station: K.M.Pur ORDER
1. Through t he presen t order I shall d ispose of t he issue regarding t he ` i n ter i m ma i n tenance ' in t he presen t case.
2. The case of t he pet i t ioner is t ha t she was wedded t o t he Responden t Husband on 29051996 accord i ng to t he Hindu r i tes & r i tua ls and ou t of t he said wed l ock one female child was born on 2101998 and one ma l e chi ld was born on 1102000. It is sta ted t ha t since t he i ncep t i on of t he marriage t he complainan t was harassed and tor tured by t he responden t and h is fam i l y members for not hav i ng brough t t he dowry as per t he i r expec ta t i on and was t o l d t o ge t more money from her paren ts. It is Page 1 of 8 2 fur ther sta ted t ha t responden t and h is paren ts were annoyed w i t h t he pet i t ioner for g i v i ng bir th t o a gir l child and she was bea ten and scolded t i me and aga i n on t h is accoun t by t hem.
3. It is averred t ha t responden t has borrowed Rs.50,000/ from t he paren ts of pe t i t i oner and dis no t re turn t he same to t he paren ts of t he pet i t ioner and ra t her responden t has t hrea tened t he pe t i t ioner t ha t i n case she w il l not borrow more money from her paren ts she w i ll be t hrown ou t of t he ma t r i mon ial house. It is alleged by t he pet i t ioner t ha t responden t has hav i ng ex t ramar i ta l af fair w i t h o ther womens. Peti tioner narra ted various i nciden ts in wh i ch she was bea ten and harassed by t he responden t and his fam i l y for demand of dowry.
4. It is fur ther averred t ha t pe t i t i oner made a repor t be fore t he CAW Cell on 1522007 and an FIR was reg is tered against t he responden t. It is sta ted t ha t pe t i t ioner and her children were t hrown ou t of t he ma t r i monial house on t he pre tex t t ha t she had made a comp l ain t i n CAW Cell. It is fur ther sta ted t ha t responden t has also t hrea tened to ki ll t he pe ti t ioner and her children. It is fur ther averred t ha t since 1632007 responden t has fai led to prov i de any ma i n tenance to t he pe t i t ioner and her chi ldren.
5. It is averred by t he pe t i t i oner t ha t responden t is work i ng in MCD as a Safai Karamchar i and earning abou t Rs.3400/, he also dr i ves a Blue Line Bus and earns abou t Rs.9000/. It is fur ther sta ted by pe t i t i oner t ha t responden t m issing h is du t i es from MCD job he also dr i ves a schoo l bus Page 2 of 8 3 to pick and drop t he children from Vasan t Kunj, DAV School and earns abou t Rs.4500/. It is sta ted t ha t t o ta l mon t h l y i ncome of t he responden t is Rs.16,800/. Peti t ioner prayed for Rs.12000/ per mon t h as in ter i m ma i n tenance.
6. The responden thusband has fi led t he rep l y t o t he pet i t ion and has no t denied t he fac t um of marr iage w i th t he pe t i t i oner. Howeve r, t he responden t has denied t he other facts of harassmen t and demand of dowry. It was den ied t ha t t he responden thusband had ever t rea ted t he pet i t ionerw i fe w i th cruel ty. It was also den ied t ha t t he husband had ever w il lfu lly neglec ted t he pet i t ionerw i fe. It is sta ted by t he responden t t ha t he is work i ng i n MCD on ad hoc basis and ge t t i ng meager amoun t of Rs.3783/ per mon th and hav ing no other source of income as alleged by t he pet i t ioner.
7. The pet i t ionerw i fe has no t f iled t he re joinder/repl icat ion to t he rep l y of t he responden thusband.
8. I have heard t he learned counsels for t he par t ies and have also perused t he records. I have g i ven t hough t fu l considera t ion t o t he con ten t i ons of t he par t ies. The appl ica tion of t he prov ision of Se .125 Cr.P.C. rests on t he edifice of ` neg l ect ' v isàv is ma t r i mon i al ob liga t ions. The objec t of t he ma i n tenance proceed i ngs is no t to pun ish a person for h is pas t neglec t, bu t to preven t vagrancy by compe lling t hose who can prov i de suppor t t o t hose who are unab le t o suppor t t hemselves and who have a mora l claim Page 3 of 8 4 to suppor t 1 . Sect ion 125 Cr.P.C. is a measure of social j ust ice and is specia lly enac ted t o pro tec t women and children and falls w i t h i n const i tu t i ona l sweep of Ar ticle 15(3) reinforced by Ar tic le 39 of t he Const i tu t i on of Ind ia, 1950. It is mean t to achieve a social purpose 2 . The ob jec t is t o preven t vagrancy and dest i t u t i on. It provides a speedy remedy for t he supp l y of food, cloth i ng and shel ter to t he deser ted w i fe. It g i ves ef fec t to fundamen tal righ ts and na tura l du t i es of a man to ma i n ta i n h is w i fe, chi ldren and paren ts when t hey are unable t o ma i n ta i n t hemse l ves. 3 9 . There are a l l ega t i ons and coun t er a l l ega t i ons of demand of dowry, crue l t i es and deser t i on wh ich are ma t t e r of f ac ts and wh ich can no t be decided a t t h is stage un l ess t he ev i dence is l ed by t he par t i es . At t h is stage cour t has to make a prima f acie view whe t her t he app lican t is en t i tl ed t o t he in t er i m re l i e f or no t .
10. A j udgmen t en t i t l ed "Tarak Shaw v. M i n to Shaw" (Calcu t t a h i gh Cour t ) repor t ed as 198 4 CRI . L. J. 206 cit a t ion has been cited on beha l f of t he pe t i t i one rw i f e wh ich says t ha t me re l y because t he husband was adjudica ted insolven t under prov isions of t he Presidency Towns Insolvency Act, he would not be absolved of his liab ilit y under S.125, Cr.P.C. t o ma i n t ain h is w i fe and ch ild because under t he la t ter provision of law, no t only his v isib le income bu t also h is capacity t o work and earn a salary were re levan t. Therefore, un l ess he fur ther establ ished 1 #################################### ######################## # ################################ ###################################### ######## # # ######### # ######## # ####### # ## # ##### # ## # ####### # ### # #### # ##### # ### ####### ###### Page 4 of 8 5 t ha t for wha t ever reason he had no means or capaci t y to work and earn a salary and tha t he had not w il lfu lly neglec ted to suppor t t hem, he could be proceeded against under t he said S.125, Cr.P.C. In t he said case t he husband had go t himself declared as i nsolven t on h is appl icat i on and sough t from t he Insolvency Cour t an order of pro tec t ion under S.25, Presidency Towns Insolvency Act aga inst h is w i fe 's ma i n tenance app licat ion under S.125, Cr.P.C.
11. In a recen t judgmen t en t i t l ed ########### # ## # ## # # # #### # # #### # ## # ## #### # ### # # ## # ## # ### # # ### t he quest i on of adequa te and suf ficien t emp l oymen t of the w i fe, as the cla i m i ng par t y, has been deal t w i t h and t he Hon'b le Supreme Cour t held : ################################### ### # ######### # ## # ######## # ##### # ### # ###### # ## # ### # ####### # ## # ######## ################ #### ################ # ###### # ######## ############ # ####### ############################## ########################################### ######################################################################### ##############
12. In Ramesh Chander Kaushal v. M rs . Veena Kaushal and o the rs , AIR 1978 SC 1807 i t was observed t hus: ##### ######### ## # ####### ## ###### ####### ### ######### ####### ## ####### ##### ### ######## ### ##### ###### ### ############## ##### ## ####### ##### ########## ## ####### ### ## #### ## ##### #### ######## ## ######## ####### ### ############# ## ###### ### ### ######### ##### ### ####### ##### #### ###### ######### ## ######## ### ######## ######## ## ### ############## ####### ### ### ###### ######## #### ##### ### ######## #### ###### ############## ## ## ### ## #### ###### ########## ## ####### ## ## ######## ## ## ######### ## ####### ### #### ############## ### ## ### ############ ##### ######## ### ##### # ### ##### ## ### ########### Page 5 of 8 6
13. The Law Comm ission of I nd i a i n i ts 132 nd repor t had observed t ha t for a f a i r and a j us t de t erm i na t i on of t he amoun t of ma i n t enance ( to t he w i f e ) no t on ly t he mon t hly i ncome of t he husband bu t a lso a ll his o t her resources ex is t i ng may be t aken in to accoun t . I n t he said repor t i t was re i t era t ed t ha t i n India t he econom i c i ndependence of t he w i fe is stil l a rar i ty. The law comm ission wh ile quo t i ng Bai Tahra 's case (1979 Cr. L. J. 151) observed t ha t Ar t icle 15 has compe lling compassiona te relevance in t he con tex t of S.125 of Cr.P.C. and t he bene fi tofdoub t if any in statu tory in terpre ta t i on belongs to t he w i fe. Protec t ion against moral ma terial abandonmen t man i fest i n Ar t.39, is par t of social and econom ic j us tice specified i n Ar t icle 38, f ulf ill men t of wh i ch is fundamen ta l to t he governance of coun try. (Ar tic le 37). The l aw Comm ission also had dif feren t i a ted t he ` po ten t ia li t y to earn ' from unab le t o ma i n ta i n herse lf ' w i t h respect t o t he w i fe.
14. In t he presen t case marriage be t ween t he par t ies is no t dispu ted ne i ther t he pa terni t y of t he ch ildren. There are specif ic a llega t ions of harassmen t and t or t ure by t he responden t and h is fam i l y members for bringing i nsuf ficien t dowry. The pet i t ioner was a lso g i ven merc iless bea t i ng on bege t t i ng gir l ch ild. It is a lso averred by t he pe t i t i oner t ha t responden t is hav i ng ex t ramar i ta l rela t ionship w i t h a women name l y Jyoti.
Although t hese a llega t ions are den ied by t he responden t on t he ground t ha t pet i t ioner is in a hab i t of leaving t he ma t r i mon ia l house w i t hou t any rhyme and reason bu t in suppor t of h is con ten t ion responden t has not filed any single documen t.
On t he other hand pet i t ioner has filed cer tain documen ts i n suppor t of her pe t i t i on i.e. da te of bir th cer ti fica te of t he daugh ter of t he par t ies, driv i ng licence of t he responden t, marr iage card, ra t i on card, comp la in t made to t he Women cell da ted 1522007, copy of FIR, Page 6 of 8 7 comp la in t da ted 312008. These documen ts are suf fic ien t to establ ish a prima facie case in favour of t he pe t i t i oner. As far as, t he i n ter i m ma i n tenance is concerned, i t is t he con ten t i on of t he pe t i t i oner t ha t she is illi tera te lady and presen t stay i ng w i th her brother and she is work ing as a par t t i me ma i d for cleaning t he u tensils and broom i ng t he houses and earns abou t Rs.1250/ per mon t h. It is con tended by t he pet i t ioner t ha t she is no t hav i ng any proper t y and to t a lly dependen t upon her fam i l y members to suppor t her and her children. It is also con tended by t he pe t i t i oner t ha t responden t is work i ng in MCD as a Safai Karamchari and earn ing abou t Rs.3400/, he also dr i ves a Blue Line Bus and earns abou t Rs.9000/. It is f ur ther con tended by pet i t ioner t ha t responden t also dr i ves a school bus t o pick and drop t he ch ildren from Vasan t Kunj, DAV School and earns abou t Rs.4500/ and t hus t he to t a l mon th l y income of t he responden t is Rs.16,800/.
In suppor t of her con ten t i on t he pe t i t i oner has filed t he pho tocopy of t he dr i v i ng licence of t he responden t Mahesh Kumar. The said licence is for Heavy Motor Vehicle issued by t he Licencing Au t hor i t y, Karnal , Haryana , i n wh ich Bus no:3592 is also wr i t ten. From t hese documen ts i t can be easily i nferred t ha t responden t is also driv i ng t he heavy vehicle and t herefore earn i ng a good amoun t ou t of i t. Howeve r, responden t in suppor t of his con ten t i on has not filed any documen t. 15 . In view of t he fac ts & circums tances of t he case and t he judgmen ts quo ted I have conc luded t ha t t he w i fe deserves i n ter i m ma i n tenance a t t h is stage. According l y I gran t t he pet i t ionerw i fe a ma i n tenance of Rs.5000/ (Five t housand) per mon t h from t he da te of fi ling of app lica t i on t i ll t he f i na l disposal of t he presen t case. Howeve r, no t h i ng con ta i ned Page 7 of 8 8 herein shall t an tamoun t to any expression on t he mer i t of t he case. Put up for PE on 22122009.
Announced i n t he open cour t on t h is 18 t h day of Sep tembe r, 2009.
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