Madhya Pradesh High Court
Arif Khan vs Ruby Khan on 2 March, 2020
Equivalent citations: AIRONLINE 2020 MP 1746
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
Cr.R. No. 4737 / 2019
Arif Khan
vs.
Ruby Khan and Another
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Shri Lal Hitendra Singh and Manish Nigam, learned
counsel for the applicant.
Shri Mukhtar Ahamad, learned counsel for the
respondents.
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ORDER
( 02.03.2020) Applicant had filed this Criminal Revision under Section 397/401 of CrPC being aggrieved by the order dated 05.04.2019 passed by the Principal Judge, Family Court, Katni in MJC No.89/2018, whereby the learned court directed the applicant to pay Rs.5,000/- p.m. to respondent No.1 (wife) and Rs.3,000/- p.m. to respondent No.2 (daughter) as maintenance.
2. Facts giving rise to this petition, in short, are that, both respondents filed an application under section 125 of CrPC against applicant for maintenance, alleging therein that respondent No.1 got married with the applicant by Muslim Custom, and respondent No.2 is born out of that wedlock. After marriage, applicant and his family members started demanding 2 Cr.R. No.4737/2019 extra money from parents of respodent No.1, for purchasing JCB. At the time of marriage, parents of respondent No.1 provided two lacs rupees cash, ornaments and one motorcycle to the applicant, but inspite of that applicant himself and his parents started demanding dowry and passed vulgar comments and sometimes they also beat respondent No.1. After giving birth to respondent No.2, harassment by applicant and other family members were increased, as she had given birth to a girl child, whereas they want a boy child. They took ornaments and other articles provided by her parents and expelled her from house and threatened her for divorce. Then she reported this matter to the Superintendent of Police Katni and also lodged a report in Mahila Thana, Katni and started living along with her daughter in her parental house. She is not having any means of income and when applicant denied for giving any maintenance then she filed the application before the Family Court, Katni. Applicant denied all the facts, as alleged in the application by respondent No.1. Learned Family Court, after recording the evidence of both side passed the impugned order dated 05.04.2019, partly allowed the application and directed the applicant to pay maintenance as aforesaid. Being aggrieved by that order of maintenance, applicant filed this criminal revision on the ground that the 3 Cr.R. No.4737/2019 applicant is earning only Rs.8,000/- per month and the amount awarded by the learned court is on higher side.
3. Learned counsel for the applicant submits that, Respondent No.1 have also filed an application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act') and in that case also she is getting Rs.2,500/- per month as interim maintenance. Learned Family Court not adjusted that amount in the maintenance allowance. Learned counsel further submits that, as applicant is only earning Rs.8,000/- per month and learned Family Court awarded total Rs,8,000/- as maintenance, that is not sustainable.
4. Learned counsel for the applicant placed reliance on orders passed by the Coordinate Benches of this Court in the cases of Mohit Jain vs. Sonali Jain in Criminal Revision No.917/2017 dated 10th April, 2018, Sunil Lodhi vs Smt. Vimlesh Lodhi in Criminal Revision No. 110/2015 dated 13.02.2017, and Gaurav Dhabhai vs. smt. Aasha Dhabhai, in Criminal Revision No.3720/2018 dated 15.10.2019 and prays to set aside the impugned order.
5. Learned counsel appearing for the respondents submits that applicant is earning more than Rs.8,000/- per month. He is a Contractor, he is having JCB Machine and maintaining four 4 Cr.R. No.4737/2019 wheeler car, his earning is more than Rs.50,000/- per month and submits that learned trial court have not erred in awarding maintenance allowance and prays to dismiss this revision.
6. Having heard both the counsel perused the record of MJC No.89/2018. Both parties adduced the evidence. Respondent No.1 recorded her statement as witness No.1, she categorically stated that applicant is having Tractor, Dumper, JCB Machine and other vehicles and run those vehicles on rent. Apart from this, the applicant is working as a Contractor and earns approximately Rs.2 lacs. She also submit some photographs of the applicant along with the vehicles. This witness had been examined at length and in para 6 thereof she again reiterated the fact that, applicant is having his own truck and JCB Machine and is working as a Contractor.
7. Applicant also examined himself as a witness and categorically stated that he borrowed Rs.18 to 20 Lacs for treatment of his father and presently he earned Rs.7,000/- to Rs.8,000/- per month only, his younger brother is working separately and his mother is dependent on him. This witness in para 6 admitted that he is working as a Supervisor in Lime Stone Crusher and in para 7 he admitted that since last one year he is not bearing any expenses of both respondents, but previously he 5 Cr.R. No.4737/2019 sent Rs.500/- to Rs.1,000/- to both respondents. This witness nowhere submitted the salary slip / salary certificate / income certificate or any documents pertaining to his income.
8. After perusal of the statements of both the parties, it is reflected that, after marriage a tensed atmosphere developed between the husband and wife. Respondent No.1 delivered a girl child at her parental house and applicant did not take care of his child and a criminal case lodged against the applicant at the instance of respondent No1. There is sufficient material available on record to show that respondent No.1 is living separately, having sufficient cause.
9. So far as amount of maintenance is concerned, learned Family Court directed the appellant to pay Rs.5,000/- to respondent No.1 (wife) and Rs.3,000/- to respondent No.2 (daughter). The amount awarded as maintenance for respondent No.2 is concerned, considering the school fees and other expenses such as books, stationary etc. this court finds that the amount awarded is not excessive for respondent No.2.
10. Now, the maintenance amount awarded to respondent No.1 is concerned, as submitted by the counsel for the applicant, the applicant is earning only Rs.6,000/- to Rs.7,000/- per month and apart of maintenance amount awarded by the learned Family 6 Cr.R. No.4737/2019 Court under Section 125 CrPC, respondent No.1 is also getting a sum of Rs.2,500/- per month as interim maintenance under Section 20 of the DV Act.
11. In the case of Mohit Jain (supra) relied upon by the applicant, a Coordinate Bench of this Court adjusted the amount of interim maintenance awarded under Section 24 of the Hindu Marriage Act with the amount awarded under Section 125 of CrPC.
12. In the case of Sunil Lodhi (supra) a Coordinate Bench of this Court following the preposition laid down by the Hon'ble Apex Court in the case of Chaturbhuj vs. Sitabai (2008) 2 SCC 316 has held that, if wife is living separately with her own will, without any sufficient cause, she is not entitled for grant of maintenance. But in the present case, there are so many criminal cases pending against each other and from the statement of respondent No.1, it is reflected that she was harassed by the applicant and his family members and there are sufficient cause for living separately which is reflected from the evidence of respondent No.1.
13. In the case of Gaurav Dhabhai (supra) this court held that non-applicant (wife) has failed to prove the income of applicant, 7 Cr.R. No.4737/2019 in these circumstances, Coordinate Bench reduced the maintenance amount from Rs.7,000/- to Rs.3,000/- per month.
14. In the present case, respondent No.1, clearly stated that applicant is having a JCB Machine, Dumper and four wheeler and is earning approximately Rs.2 Lacs Rupees. The applicant in his statement, in para 4, deposed that his younger brother deals with the business of crusher project and in his cross-examination admitted that, he is working as Supervisor in Lime Stone Crusher and stated that his earning is Rs.7,000/- to Rs.8,000/- per month, but not submitted any proof related to his salary to substantiate that statement. Once respondent No.1 stated that applicant is having a sufficient means of earning, he is having a JCB Machine, Dumper and four wheeler, it is not possible for the respondent to submit exact income of her husband while living in matrimonial house, she can gather facts on which her husband earns money. Now, burden is shifted to the husband to rebut that fact and produced sufficient rebuttal evidence.
15. Hon'ble Apex Court in the case of Shamima Farooqui vs. Shahid Khan, reported in (2015) 5 SCC 705, categorically held that, if husband is an able bodied young man, is not suffering from any deformities and is capable of earning money, then, he is under obligation to maintain his wife. Hon'ble Apex Court 8 Cr.R. No.4737/2019 calculated an estimated income and awarded maintenance allowance. Para 18 and 19 of the judgment reads as under :
18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash wherein it has been opined thus:-
7. .....an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
19. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises.
When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.
16. Considering all these facts, this court is of the firm view that the learned Principal Judge did not commit any error in awarding Rs.5,000/- maintenance while considering the present living index and current price index.
9Cr.R. No.4737/2019
17. Learned trial court considered this aspect that respondent No.1 is getting Rs.2,500/- per month as interim maintenance under Section 20 of the DV Act and while considering that allowance awarded Rs.5,000/- as maintenance allowance under Section 125 of CrPC to respondent No.1 and not adjusted the amount of Rs.2,500/-, awarded as interim maintenance by the trial court.
18. So far as set-off of the amount of Rs.2,500/- is concerned, perused Section 20 of the D.V. Act, which reads as under :
20. Monetary reliefs.--(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
10Cr.R. No.4737/2019 (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
19. After perusal of Section 20(1)(d), this court is of the view that the order passed under Section 20 of the DV Act, whether it is temporary or permanent, It is under or in addition to the order of maintenance under Section 125 CrPC.
20. So far as interim maintenance awarded under Section 20 of DV Act is concerned, this court is of the view that the maintenance allowance awarded under Section 125 of CrPC by the Family Court and interim maintenance under Section 20 of the DV Act awarded by the Trial Court are of the same nature. It is not a separate amount, it is under or in addition to each other. 11 Cr.R. No.4737/2019 Interim maintenance Rs.2,500/- is fixed by the trial court in a case pending between the applicant and respondent No.1 under DV Act. This court is of the view that amount awarded by the trial court under any provisions of the DV Act, until and unless not specifically mentioned in the order, it should be adjusted with the order for awarding maintenance under section 125 of CrPC.
21. In this way, the amount of Rs.2,500/- awarded as interim maintenance under DV Act could be adjusted in the amount of maintenance awarded under Section 125 of CrPC. Hence, this court incline to modify the operative order by adding that, if respondent No.1 received an amount of Rs.2,500/- as interim maintenance or as a maintenance under DV Act, that amount be adjusted in the awarded amount of Rs.5,000/- in favour of respondent No.1.
22. With the aforesaid modification, this revision is partly allowed and disposed of.
23. Interlocutory applications, if any, pending in this case, stands dismissed.
No order as to costs.
(Vishnu Pratap Singh Chauhan) Judge ss Digitally signed by SWETA SAHU Date: 2020.03.03 11:09:54 +05'30'