Madhya Pradesh High Court
Amit Pandey vs Smt. Manisha Pandey on 9 January, 2020
Equivalent citations: AIRONLINE 2020 MP 312
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
HIGH COURT OF MADHYA PRADESH : JABALPUR.
(S.B.:Hon'ble Shri Justice Rajendra Kumar Srivastava)
CRIMINAL REVISION NO.2934/2019
Amit Pandey
Vs.
Smt. Manisha Pandey.
Shri Sourabh Singh Thakur, Advocate, for the petitioner.
Ms. Amrit Kaur Ruprah, Advocate for the respondent.
ORDER
(09.01.2020) 1: Petitioner/non-applicant has filed this Criminal Revision under Section 397 read with Section 401 of Cr.P.C. to set aside the order dated 16.5.2019, passed in M.J.C.No.186/2016, by I Addl. Principal Judge Family Court, Jabalpur, whereby learned Principal Judge, Family Court, has allowed the petition presented by respondent/ applicant under Section 125 of Cr.P.C. and directed the petitioner/ non-applicant to pay Rs.10,000/- per month as maintenance.
2: The respondent/wife filed an application before Family Court, Jabalpur, under Section 125 of Cr.P.C. It is submitted by the respondent/wife that her marriage was solemnized with the petitioner/non-applicant on 24.2.2007. At the time of marriage, petitioner/non-applicant and his parents demanded dowry. Father of respondent/wife incurred amount of Rs.12,00,000/- (Rupees Twelve Lacs) in the marriage. Thereafter, petitioner/non-applicant and his family members demanded dowry on account of non-fulfillment of dowry. On account of non-fulfillment of dowry, they tortured, humiliated and taunted her. Petitioner/non-applicant used to tell her to go to her parental house. Petitioner/non-applicant also used to tell 2 her that one Sushila Soni, working as maid servant in the family is whole-sole for him. Petitioner/non-applicant and her maid servant tried to oust the respondent/wife. Thereafter, they thrown her out from her matrimonial home on 6.3.2010. On 1.12.2013, her father went to the house of petitioner/non-applicant and Petitioner/non- applicant told him that he wants divorce from her. So, petitioner/ non-applicant refused to keep him. On 16.5.2015, when her father- in-law became ill, then respondent/wife went to matrimonial home, but petitioner/non-applicant and his maid servant again thrown her out from matrimonial house on 12.6.2015. Respondent/wife is living separately from the petitioner/non-applicant since 12.6.2015. Again in December 2015, respondent/wife went to the matrimonial home to see her father-in-law, but petitioner/non-applicant refused to keep her and ousted her from the matrimonial house. Due to this, respondent/wife is living separately. She has no source of income. Petitioner/non-applicant neglected to maintain her. Petitioner/ non- applicant owns 35 acres of agricultural land and he earns Rs.15 lacs per annum from the agricultural land. Apart from that, he owns a tractor and one house. He is also an Advocate, so he earns more money from this profession and property. So, respondent is entitled to Rs.20,000/- per month towards maintenance.
3: The petitioner/non-applicant filed reply before the trial Court. It is submitted by him that he and her family did not demand any dowry from the respondent/wife and her parents. He and his family members did not torture and humiliate her due to non-fulfillment of dowry. Actually, at that time, his mother was a patient of cancer and his father was a patient of paralysis. Respondent/wife did not care them. She did not pay attention to them. She was not interested to do domestic work. She used to tell him that she is an Advocate. She wants to work as an Advocate at Jabalpur. So, respondent/wife was not interested to live with the petitioner/non-applicant at Damoh. She is habitual to live luxurious life at Jabalpur, so she is not interested to live with the petitioner/non-applicant at Damoh. Respondent/wife has sufficient means of income. She is an Advocate and she is practising Lawyer, so she is earning sufficient 3 amount from this profession. She is living separately without any reasonable cause. Petitioner/non-applicant has 5 to 6 acres of agricultural land. Petitioner/non-applicant had taken loan by mortgaging his agricultural land from medical treatment of his father, who was under medical treatment, therefore, petitioner/non- applicant has no sufficient means of income. He is ready to keep the respondent/wife with him, therefore, respondent/wife is not entitled to get any maintenance from the petitioner/non-applicant.
4: Both the parties produced the evidence before the trial Court. Learned trial Court allowed the petition and awarded maintenance as above.
5: Learned counsel for the petitioner/non-applicant submits that learned Principal Judge, Family Court, did not consider the material evidence at the time of passing of the final order. It is evident from the record as well as submissions made by learned counsel for both the parties, that the respondent/wife is living separately from the petitioner/non-applicant since 2010. Thereafter, she filed a petition for maintenance in the year 2016. She also admitted this fact that she did not file any petition under Section 9 of the Hindu Marriage Act, therefore, it is clear that the respondent/wife is not interested to live with the petitioner/non-applicant. Respondent/wife is LL.B. Graduate, she is enrolled as an Advocate and therefore, she has sufficient means to earn her livelihood. Learned trial Court did not appreciate the documents Ex.D/2 to Ex.D/20, which are medical bills and prescription of father of petitioner/non-applicant, which show that his father was admitted in the hospital many times from the year 2007 to 2019. His father has undergone several operations as he was suffering from paralysis and kidney problem. Petitioner/ non-applicant incurred huge expenses for medical treatment of his father, therefore, petitioner/non-applicant had taken loan for medical treatment of his father by mortgaging his agricultural loan. So, the petitioner/non-applicant has no sufficient means of income from agricultural land. Apart from this, agricultural land is joint family property and partition of land did not take place. There are other co-
4owners of joint agricultural land, but learned trial Court did not appreciate this fact in proper perspective. Respondent/wife is living separately from the petitioner/non-applicant without any reasonable cause. Petitioner/non-applicant is ready to keep her with him, so respondent/wife is not entitled to get any maintenance. The awarded maintenance is too excessive. It is made clear that initially respondent/wife filed a petition under Section 125 of Cr.P.C. Petitioner/non-applicant did not appear before the Principal Judge, Family Court, then learned Principal Judge Family Court proceeded ex-parte as against the petitioner/non-applicant and judgment was passed by awarding Rs.8,000/- per month towards maintenance. The aggrieved petitioner/non-applicant filed Criminal Revision No.1700/2018 before this Court. This Court allowed the petition presented by the petitioner/non-applicant on 26.7.2018, set aside the previous order and remanded the case for its final adjudication on merit. Then petitioner/non-applicant appeared before the learned trial Court and learned trial Court again passed this order and directed the petitioner/non-applicant to pay Rs.10,000/- per month as maintenance, so awarded maintenance is very excessive. Petitioner/non-applicant is not in a position to pay the awarded amount as directed by the learned Principal Judge, Family Court. Therefore, learned counsel for the petitioner/non-applicant prays for setting aside the impugned order.
6: Learned counsel for the respondent submits that the respondent is wife of petitioner and she is living separately since 2010, but petitioner/non-applicant is not interested to keep with him. Respondent/wife has no sufficient source of income. Petitioner/non-applicant is the husband, so it is his legal and moral liability to pay maintenance. Therefore, the order passed by learned trial Court is proper and no interference is warranted on it.
7: Heard learned counsel for both the parties and perused the record.
8: It is evident that respondent is the wife of petitioner/non- applicant. Respondent/wife is living separately from the 5 petitioner/non-applicant since 2010. Respondent/wife Manisha Pandey (PW/1) deposed before the trial Court that petitioner/ non- applicant humiliated, taunted and tortured her due to non-fulfillment of dowry. She tried to live with petitioner/non-applicant, but petitioner/non-applicant refused to keep her with him, therefore, she is living in her parental house. Her father Pradeep Dubey (PW/2), deposed the same facts before the trial Court. In the cross- examination of these witnesses, there is no material contradictions and variations on which it can be said that respondent/wife has no reason to live separately from the petitioner/non-applicant. It is also an admitted fact that petitioner/non-applicant did not file any petition under Section 9 of the Hindu Marriage Act to keep his wife with him. So, it appears that the petitioner/non-applicant is not interested to keep respondent/wife with him. It is also admitted fact that petitioner/ non-applicant did not pay any amount of maintenance since 2010 to 2016. Therefore, it is also proved that petitioner/non- applicant refused to maintain his wife. Respondent/wife admitted this fact that she is an Advocate, but she also deposed this fact before the trial Court that she is not earning any amount from this profession. There is no material available on record on which it can be said that the respondent/wife is earning sufficient amount from the profession of Advocate. Although, it is admitted fact that respondent/wife is living with her parents at Jabalpur. Her parents have a house and agricultural land, but petitioner/non-applicant is the husband of respondent/wife, so it is his legal duty to maintain his wife. Apart from that, petitioner/non-applicant is morally bound to maintain his wife. Therefore, learned Principal Judge, Family Court appreciated each and every facts in this regard, so no interference is warranted in the finding that respondent/wife is living separately from the petitioner/non-applicant since 2010. Petitioner/non- applicant neglected to maintain respondent/wife and she has no sufficient means of income.
9: Learned counsel for the petitioner/non-applicant submits that the petitioner/non-applicant has no sufficient means of income. Learned Principal Judge, Family Court, held the income of 6 petitioner/ non-applicant as below :-
^^14- tgka rd vukosnd dh vk; dk laca/k gS] rks vukosnd dk ;g dguk gS fd og odkyr dk O;olk; ugha djrk gS] vkosfndk us ;|fi vukosnd ds fof/k O;olk; ds iath;u ds laca/k esa izek.k izLrqr fd;k gS] fdUrq tSlk fd vukosnd dguk gS fd igys og vius ekrk&firk ds vLoLFk gksus ds dkj.k dHkh odkyr dk O;olk; ugha djrk gS rFkk izfr ijh{k.k esa fn;s lq>ko dks Hkh vLohdkj fd;k gS fd og odkyr djrk gS vkSj lkekU; :i ls ,slk ns[kus esa vk;k gS fd cgqr ls O;fDr fof/k O;olk; dk iath;u djk ysrs gS dHkh&dHkkj U;k;ky; esa pys tkrs gS] dHkh dHkkj ds tkus ls mldh vk; ugha gks ikrh gS] blfy, vukosnd fof/k O;olk; ls vk; vftZr djrk gS ,slk dksbZ izek.k ugha gSA vukosnd ds ikl Hkwfe;ka gS] bl laca/k esa izn'kZ ih&6 yxk;r ih&22 rd [kljk iap'kkyk izLrqr fd;s x;s gS] ftuesa dqN Hkwfe vukosnd ds uke vkSj dqN Hkwfe mlds firk ljkstukFk ds uke ls gSA pwfa d vukosnd ds ekrk&firk nksuks dh e`R;q gks pqdh gS rFkk ,slk dksbZ izek.k ugha gS fd ljkstukFk ik.Ms ds vdsys uke dh Hkwfe esa Hkh mlds HkkbZ;ksa dk fgLlk gS rFkk Hkwfe;ksa esa vU; yksxksa dk uke gS] fdUrq ljkstukFk vkSj vukosnd ds uke ls d`f"k Hkwfe gS] fuf'pr gh vukosnd dks vPNh vk; bu Hkwfe;ksa ls gksxh] vukosnd ds ikl vU; dksbZ nkf;Or Hkh ugha gS] cfguksa dh 'kknh gks pqdh gS vkSj ;fn ;g ekuk tkos fd vukosnd dsoy [ksrh ls vk; vftZr djrk gS] rks vukosnd ds ikl Ik;kZIr [ksrh gS] blfy, og vPNh vk; vftZr djus esa l{ke gS vkSj lkyHkj esa djhc 5]00]000@& :i;s ¼ikap yk[k :i;s½ dek ysrk gksxk] ;|fi nqdkusa vkSj edku fdjk;s ls nsus dk dFku Hkh vkosfndk us fd;k gS] fdUrq bl laca/k esa dksbZ izek.k ugha gSA rnuqlkj fopkj.kh; iz'u dzekad&1 dk fujkdj.k fd;k tkrk gSA ** In this regard, petitioner/non-applicant had filed the documents of agricultural land vide Ex.P/6 to P/22. Learned Principal Judge, Family Court held that the land belongs to only petitioner/non-applicant, so his income is assessed as Rs.5 lacs per annum, but it is evident from these documents that his sister, namely, Ashtha and uncles Kailasnath, Ajay Kumar, Sanjay Kumar are also joint co-owners of some land which is evident vide Ex.P/8, P/9, P/19 to P/22. Petitioner/non-applicant has filed medical documents regarding treatment of his father, therefore, it is evident that he incurred substantial amount for medical treatment of his father Pradeep Dubey. Neeraj Mishra (PW/3), deposed before the trial Court that petitioner/non-applicant took loan from him, so it is proved that petitioner/non-applicant incurred huge amount in the treatment of his father and he took loan from his friend also. Therefore, learned trial Court had assessed the income of 7 petitioner/non-applicant from agricultural land is excessive. The finding of learned trial Court about the income of petitioner/ non- applicant is against the record, so interference on it is warranted, considering the agricultural land of the petitioner/non-applicant, his income can be assessed to Rs.30,000/- per month.
10 : The Hon'ble Apex Court in the case of Kalyan Dey Chowdhary Vs. Rita Dey Chowdhary Nee Nandy (AIR 2017 SC 2383), has held that 25% of the income of the husband would be just and proper and not more than that. So, apart from that when ex-parte order was passed in favour of the respondent/ wife, then learned trial Court should have awarded 25% of the net income of the petitioner/non-applicant as maintenance and not more than that.
So, it is appropriate to reduce the awarded maintenance amount of Rs.10,000/- per month to Rs.7,000/- per month which would be paid by the petitioner/non-applicant to the respondent/wife. The decisions in Deb Narayan Halder Vs. Smt. Anushree Haldar (AIR 2003 SC 3174) and Chandrakalabai Vs. Bhagwan Singh (2002 Cr.L.J. 3970) are not at all applicable in the case of petitioner/non- applicant.
11 : Accordingly, the Criminal Revision is partly allowed. The impugned order dated 16.5.2019, passed in M.J.C.No.186/2016, by I Addl. Principal Judge Family Court, Jabalpur deserve to be modified to the extent that in place of Rs.10,000/- per month, the appellant will pay Rs.7,000/- per month to the respondent regularly.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE A.Praj.
Digitally signed by ASHWANI PRAJAPATIDate: 2020.01.10 14:08:22 +05'30'