Madhya Pradesh High Court
Mohd. Shiraj Javed vs The State Of Madhya Pradesh on 11 May, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS. VANDANA KASREKAR
CRIMINAL REVISION NO.175 OF 2017
Mohd. Shiraj Javed
vs.
The State of M.P. and another
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Shri Manish Datt, learned senior counsel with Shri Rahul
Sharma, Advocate for the applicant.
Shri Rajkamal Chaturvedi, learned counsel for the non-
applicant.
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O R D E R
(11/05/2017) The applicant has filed the present criminal revision challenging the order dated 16/12/2016 passed by the Principle Judge, Family Court, Bhopal in M.Cr.C.No.23/2015 by which the Family Court has allowed the application preferred by the non-applicant under Section 125 of the Cr.P.C. and granting the monthly maintenance @ Rs.75,000/- per month and educational expenses @ Rs.25,000/- per month to the non- applicant.
2. Brief facts of the case are that the non-applicant/wife has preferred an application under Section 125 of the Cr.P.C. before the Principle Judge, Family Court, Bhopal seeking monthly maintenance of Rs.1,00,000/- and Rs.15,00,000/- per annum for her studies in Dental College at Bhopal. It is alleged that the non-applicant was married with the applicant on 05/10/2012 according to Muslims customary rites and traditions and, thereafter she lived at her matrimonial home. The applicant/husband is reckoned one of the richest and affluent person in the city of Bhopal. The father of the applicant was bit industrialist of Bidi manufacturing in India and after the death of the father of the applicant, he is successor of the huge property and business at Bhopal. It has been further alleged that the non-applicant stayed at her matrimonial home only for six months and during that period she was being subjected to cruelty and mental and physical harassment by the applicant and other family members. Thereafter, she went to her parental home for appearing in the examination. It has further been alleged in the application that when the non-applicant went to her matrimonial home for the second time, she was being ill- treat and subjected to inhuman treatment by the applicant and his family members. Thereafter, she returned to the parental home and doing BDS course in Medical College Bhopal. It is further stated that when the applicant and matrimonial relative did not take care of the non-applicant, she was constrained to file a report under Section 498-A of the IPC. The non-applicant, thereafter, filed an application under Section 125 of the Cr.P.C. claiming maintenance @ Rs.1,00,000/- per month and also prayed for Rs.15,00,000/- for her BDS studies. She has stated that the applicant is only issue of his parents and earns Rs.10,00,000/- per month from the Bidi business, he has a bungalow at VIP Road Bhopal worth of Rs.5 crores, there is a 15,000 sq.ft. plot at Lalghati Main Road and having TVS show room. On the basis of the aforesaid, she claimed the maintenance as stated above.
3. The applicant/husband has filed the reply to the said application and denied the allegations made in the application. The non-applicant denied that non-applicant at her own left the matrimonial home and residing along with her parents. The non-applicant used to cause mental pressure to the applicant to live separately from his parents and she often used to quarrel with his parents. She had lodged a false and fictitious report alleging demand of dowry against the applicant. The applicant further submitted that so far as the Bidi Firm is concerned, the said firm has 19 partners with different shares. The said firm is running in loss. He denied that the applicant is earning Rs.10 lakhs per month in Bidi business. He filed a copy of the income tax return showing the annual income of the applicant. It is further submitted that the non-applicant had lodged FIR against the applicant and his family members under Section 498-A of the IPC and under Sections 3 & 4 of Dowry Prohibition Act, 1961. The learned Judicial Magistrate First Class vide order dated 26/08/2016 acquitted the applicant as well as his family members from the said charges. The trial Court after hearing both the parties and taking into consideration the evidence produced by the parties had allowed the application preferred by the non-applicant thereby awarding the maintenance of Rs.75,000/- per month to the non- applicant and Rs.25,000/- towards the educational expenses. Being aggrieved by that order, the applicant has filed the present revision before this Court.
4. The learned senior counsel appearing on behalf of the applicant submits that the amount of maintenance awarded by the Family Court is on higher side. He submits that in absence of any documentary proof, the Family Court has passed the order only on assumptions and presumptions. He further submits that the non-applicant is living at her parental home and there is no iota of evidence demonstrates that she was subjected to cruelty or ousted from the house. It has further been alleged that a false case was registered under Section 498-A of the IPC, against the applicant and his parents in which the applicant was acquitted by the trial Court. The Family Court has further erred in assessing the income of the applicant. He submits that without considering the income tax returns, which is available on record, the income of the applicant has been shown to be very excessive. He further submits that the property which is shown to be in the name of the applicant which enumerated by the non-applicant in the application under Section 125 of the Cr.P.C., is not in the exclusive name of the applicant. There are more than 16 shares holders in the property and there is no cogent and plausible documents to rely upon the oral submissions made by the non-applicant.
5. Learned senior counsel for the applicant further argues that the maintenance under Section 125 of the Cr.P.C., provides for food and clothing only and no maintenance can be awarded for education or other expenses. He submits that in the present case, the Family Court has erred in awarding the maintenance towards the educational expenses to the non- applicant. He relied on a judgment passed by this Court in the case of Subhas Chandra Kanwar vs. Kumari Anshu, reported in 1983 Weekly Notes, 130, and Vijay Shankar vs. Shashi Prabha, reported in 1984 Weekly Notes, 62, and the judgment passed by the Apex Court in the case of Chaturbhuj vs. Sita Bai, 2008(1) MPLJ (Cri) 398 .
6. On the other hand, learned counsel appearing on behalf of the respondent supports the order passed by the Family Court. He submits that there is an ample evidence on record to show that the applicant is earning Rs.10 lakhs per month. He owned number of immovable properties. He further submits that the applicant is studying in BDS course and she has no source of income and, therefore, the Family Court has rightly granted the maintenance @ Rs.25,000/- per month towards her educational expenses. In view of the aforesaid, he submits that revision be dismissed.
7. I have heard learned counsel for the parties and perused the record as well as the order passed by the Family Court.
8. From perusal of the order, it reveals that the applicant and non-applicant had entered into the marriage on 05/10/2012 as per Muslims rites at Bhopal. As per the allegations made by the non-applicant, after some days of marriage, applicant as well as his parents started physical as well mental harassment to the non-applicant and demanded dowry, therefore, she made a report to the police and the matter went before the trial Court. However, the trial Court has acquitted the applicant and his parents from committing the offence under Section 498-A of the Cr.P.C..
9. So far as the income of the applicant is concerned, the trial Court has assessed the income of the applicant on the basis of the documents produced by the non-applicant. The applicant, however, denied that he is the owner of the entire property. Applicant has also produced the Income Tax return showing his income before this Court which shows that the applicant is earning Rs.2,14,908/- per annum for the years 2016-17.
10. So far as the income from the partnership firm for doing the business of Bidi is concerned, the applicant has filed a copy of the agreement of partnership. As per the said agreement, there are about 20 partners of the said firm and applicant is having 15.34% shares in the said firm. Thus, on the basis of these documents which are filed by the applicant before this Court, the income assessed by the Family Court is on higher side.
11. So far as the award of Rs.25,000/- per month towards the educational expenses is concerned, this Court in the case of Subhas Chandra Kanwar (supra) has held as under :-
"The applicant is father of the non- applicants who are minor children. The non- applicant's, through their mother, filed an application against the applicant for an order of maintenance under Section 125, of the Code of Criminal Procedure. The application was opposed by the applicant. The Magistrate, vide order dated 06/10/1980, allowed the application and ordered the applicant to pay maintenance allowance at the rate of Rs.200, per month for the maintenance of the non-applicant with effect from 06/11/1978, i.e. the date of the application. Revision-petition filed by the applicant in the Session Court was dismissed on 15/02/1981. Being aggrieved thereby, the applicant has filed the present application under Section 482 of the Cr.P.C.
Held : The amount of maintenance was
determined by the Magistrate under different
heads as mentioned below.
(i) Food including mil Rs.100, per month;
(ii) Clothes Rs.30, per month;
(iii) For education of the non-applicant Rs.40, per month and
(iv) Other necessary expenses Rs.30, per month.
The learned counsel for the applicant has confined his arguments only to the quantum of maintenance. His contention is that the maintenance contemplated in Section 125, ibid is food and clothing and it does not include education and other matters. That being so, accordingly to him, no amount could be ordered for education and other expenses and, thus, the amounts mentioned at item Nos. (iii) and (iv) above deserve to be omitted. His contentions are supported by decision in the case of H. J.
Mascreen vs. Dr. (Mrs.) R.K. Mascreen (AIR 1956 Madras 154). No decision to the contrary has been placed before me. That was a case under Section 488, of the Code of Criminal Procedure, 1898. Similar provisions are introduced by section 125 of the Code of Criminal Procedure, 1974, by which the Act of 1898 was repealed. Therefore, the fact that the case was under Section 488, of the old Code while the present case is under Section 125, of the new Code does not make any difference. The following observations made in that case are noteworthy.
"....The maintenance contemplated in that section is food and clothing, It does not include education and other matters.
The Court can order only as much as is necessary for the food and clothing of the children."
Thus, I hold that the amounts mentioned at item Nos. (iii) and (iv) above are liable to be struck down. That reduces the amount of maintenance to Rs.130, only per month. Application allowed."
As per the said judgment, the non-applicant is entitled to get only the maintenance for food and clothing and no maintenance can be awarded for education or other expenses.
12. The Apex Court in the case of Chaturbhuj (supra) in para 7 has held as under :-
"7. 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 herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of section 125, Criminal Procedure Code. It has to be established that with the amount she earned the respondent-wife was able to maintain herself."
As per the said judgment, the burden is placed in the first place upon the wife to show that the means of her husband are sufficient and she is unable to maintain herself.
13. Thus, in light of the said judgment passed by the Apex Court, burden is on the wife to proof the income of the husband. However, in the present case, although the non- applicant has produced certain documents to show that husband is having huge property, but husband has denied the same and submits that the said property is in the joint name of the family. In view of the aforesaid, the amount of maintenance awarded by the Family Court appears to be on higher side. Accordingly, the amount awarded by the Family Court towards educational expenses is hereby set aside and the amount of Rs.75,000/- awarded towards maintenance is reduced to Rs.50,000/- per month. The said amount will be payable to the non-applicant from the date of the order passed today.
Certified copy as per rules.
(MS. VANDANA KASREKAR) JUDGE manju HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH : JUSTICE MS. VANDANA KASREKAR CRIMINAL REVISION NO.175 OF 2017 Mohd. Shiraj Javed vs. The State of M.P. and another O R D E R Post it for :11/05/2017 (MS. VANDANA KASREKAR) JUDGE (09/05/2017)