Madhya Pradesh High Court
Kapil Budholiya vs Smt. Anuradha Budholiya on 28 January, 2016
CRR-2820-2015
(KAPIL BUDHOLIYA Vs SMT. ANURADHA BUDHOLIYA)
28-01-2016
Shri Vishal Dhagat, counsel for the applicant.
Record of the Court below has been received.
Heard on admission.
This criminal revision is directed against the order dated
07.09.2015 passed by the Court of Principal Judge, Family
Court, Damoh, in miscellaneous case No.406/2015, whereby
an application under Section 125 of the Cr.P.C. for
maintenance filed on behalf of the respondent wife Anuradha
was allowed and the applicant Husband Kapil was directed to pay maintenance to her @ Rs. 2,000/- per month. The impugned order has been assailed on behalf of the applicant Husband on the grounds that the respondent wife is staying away from him on her own free will and accord. She is capable of maintaining herself and the applicant Husband is incapable of maintaining her.
It may be noted here that in the revisionary jurisdiction, the High Court is not expected to re-appreciate the evidence as in criminal appeal; however, the respondent wife has stated in her statement that the applicant Husband demanded Rs.2 Lacs in cash and a motorcycle by way of dowry and beat her up. At about 10.00 am on 22.01.2014, applicant Husband again assaulted her for the same reason. Aforesaid demand was made even in the presence of parents of the respondent wife. The applicant Husband has denied those allegations and it is alleged that the respondent wife habitually misbehaved with his parents and his sister-in-law. She used to visit her maternal home without permission of the applicant Husband. She left for Mumbai to complete a computer course. When the applicant Husband used to call her on telephone, she used to hang-up on him. The applicant Husband also filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.
After duly appreciating the evidence of both the parties, learned Family Court Judge held that the respondent wife did not lodge an FIR in the police station against misdemeanor of the applicant Husband because she and her parents did not want to spoil their relations with applicant Husband. She left for Mumbai to complete her course, which she was doing since prior to her marriage. She went to her maternal home because of death of her grandfather. Learned Family Court Judge also observed that the applicant Husband has not clarified whether the application under Section 9 of the Hindu Marriage Act was filed after the present application under Section 125 of the Cr.P.C. or before it. No copy of the application has been brought on the record of this case; as such, the possibility that the application under Section 9 of the Hindu Marriage Act was merely a tactical ploy, cannot be ruled out.
In aforesaid circumstances, learned Family Court Judge held that it cannot be said that the respondent wife is staying away from her husband of her own free will and accord. Since cogent reasons have been assigned for aforesaid findings, there is no ground to interfere with this finding under the revisionary jurisdiction.
Now the question as to whether or not the respondent wife is capable of maintaining herself shall be considered. It is true that respondent wife is an educated lady. She also admitted that she has done software testing course from Mumbai and she is also doing her B.Ed. course. She stated that her father, who is a Government Officer is bearing the expenses of her education. Respondent wife has also admitted that earlier she used to serve in Mumbai but after marriage, she lost her job. She was selected as a teacher in Government School at Abhana but she is not doing that job. The applicant Husband has also not filed any documents to prove that the respondent wife is serving as a teacher at Abhana. In these circumstances, it is clear that though the respondent wife may have capacity to earn but at present she is not earning anything and is concentrating on her studies. Thus, learned Family Court Judge has rightly held that the respondent wife has no source of earning and she is dependent upon her father.
So far as the capacity of the husband to maintain himself and his wife is concerned, the respondent wife has stated that the applicant Husband is a Medical Representative and earns Rs.25,000/- per month. He also receives Rs.13,000/- by way of rent. He also earns from agricultural land, which stands jointly in his name along with others. In this regard, applicant Husband stated that he is suffering from tuberculosis and has also filed documents in support of his contention; however, learned Family Court Judge has held that tuberculosis is not such a disease, which incapacitates one from generating income. Thus, the findings recorded by learned Family Court Judge that the applicant Husband has sufficient means to maintain his wife also cannot be interfered with. Taking the aforesaid circumstances into account, learned Family Court Judge has fixed a meagre amount of Rs.2,000/- per month by way of maintenance, which by no stretch of imagination, can be said to be excessive.
In aforesaid view of the matter, no interference in the impugned order under the revisionary jurisdiction of this Court is warranted.
Consequently, this criminal revision deserves to be and is accordingly dismissed in limine.
(C V SIRPURKAR) JUDGE