Madhya Pradesh High Court
Vivek Pandey (Physically Handicapped) vs Smt Mitali Pandey on 1 April, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1 CRR No. 1791 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 1st OF APRIL, 2024
CRIMINAL REVISION No. 1791 of 2023
BETWEEN:-
VIVEK PANDEY (PHYSICALLY HANDICAPPED)
S/O LATE SHRI OMKAR NATH PANDEY, AGED
ABOUT 45 YEARS, AT PRESENT URWAI GATE
BAHODAPUR DISTRICT GWALIOR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI H.K. SHUKLA - ADVOCATE)
AND
SMT MITALI PANDEY W/O VIRENDRA
KUMAR WRONGLY WRITTEN W/O VIVEK
PANDEY, AGED ABOUT 35 YEARS,
OCCUPATION: PRACTICING ADVOCATE, MP
1.
HIGH COURT CITY CENTER DISTRICT
GWALIOR AT PRESENT DEEWAN HOUSE
LAXMIGANJ AB ROAD TIRAHA LASHKAR
(MADHYA PRADESH)
OMKAR NATH PANDEY S/O LATE SHRI
RAMSWAROOP PANDEY, AGED ABOUT 73
2.
YEARS, URWAI GATE BAHODAPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/4/2024
10:02:03 AM
2 CRR No. 1791 of 2023
SMT. ARUNA PANDEY W/O LATE SHRI
3. OMKAR NATH PANDEY URWAI GATE
BHODAPUR (MADHYA PRADESH)
SMT. AMITA PANDEY W/O SHRI MANISH
4. PANDEY, AGED ABOUT 40 YEARS, URWAI
GATE BAHODAPUR (MADHYA PRADESH)
MANISH PANDEY S/O LATE SHRI OMKAR
5. NATH PANDEY, AGED ABOUT 45 YEARS,
URWAI GATE BAHODAPUR (M.P)
.....RESPONDENTS
(BY SHRI PREM SINGH BHADORIYA - ADVOCATE)
This revision coming on for Admission this day, the court
passed the following:
ORDER
Present criminal revision is filed under Section 397 read with 401 of Cr.P.C against the order dated 12.04.2023 passed by VI Additional District Judge, Gwalior in Cr.A No. 529 of 2022, whereby, learned appellate Court has partly allowed the appeal filed by the respondent No.-1/wife against the order of trial court dated 18.10.2022 by which the court awarded Rs.2000/- per month as maintenance and petitioner was directed to pay Rs.10,000/- per month to the respondent No.1/wife and Rs.5000/- to his minor son- Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/4/2024 10:02:03 AM 3 CRR No. 1791 of 2023 Ansh.
2. The facts in brief to decide the revision are that the respondent No.-1/wife filed an application under Section 12 of Protection of Women from Domestic Violence Act for reliefs under the said Act against the petitioner/husband and his family members. As per the facts narrated in the application, the marriage of respondent No.1 with the petitioner was solemnized on 16.12.2005. The respondent No.1/wife was subjected to physical and mental harassment by the petitioner and his family members and was thrown out of her matrimonial home by the petitioner.
3. Petitioner opposed the prayer sought in the application by filing his written reply. However, he failed to appear before the trial court at the stage of recording of evidence and was proceeded ex-parte.
4. The trial Court after going through the evidence of respondent No1-wife and hearing the case on merits, partly allowed the application vide impugned order dated 18.10.2022 and Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/4/2024 10:02:03 AM 4 CRR No. 1791 of 2023 directed the petitioner/husband to pay Rs.2,000/- to respondent No.1/wife-Mitali and his minor son - Ansh from the date of the order. Against the said order, a criminal appeal was filed before the appellate Court and the Appellate Court has partly allowed the appeal and enhanced the maintenance amount from Rs.2000/- per month to Rs.10,000/- per month to the respondent No.1/wife and Rs.5000/- per month to his son-Ansh. Against the said order, present revision has been filed.
5. Learned counsel for the petitioner argued that the impugned order is perverse and against the evidence and facts available on record. It is further submitted that learned Appellate Court has ignored the fact that petitioner is physically handicapped and on account of threatening, he could not appear before learned trial Court and the case was proceeded ex-parte against him. It is further submitted that it is the wife who has deserted the petitioner/husband and he is not having any regular source of income. Learned appellate Court has wrongly held that the petitioner/husband is Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/4/2024 10:02:03 AM 5 CRR No. 1791 of 2023 earning Rs.75,000/- per month. It is further submitted that learned Appellate Court also ignored the fact regarding earning capacity of the wife which is relevant consideration to decide the maintenance amount. Learned Appellate Court also ignored the fact of cruelty caused by respondent/wife on the parents of the petitioner. Under these circumstances, impugned order dated 12.04.2023 passed by Appellate Court in Cr.A. No. 529 of 2022 deserves to be set aside.
6. On the other hand, learned counsel for the respondent No.1 supported the impugned judgment and argued that the present petition is baseless and deserves to be dismissed.
7. Heard learned counsel for the rival parties and perused the available record.
8. It is not disputed between the parties that petitioner - Vivek Panday is the husband of respondent No. 1- Mitali. It is also not disputed that respondent No.1 is living separately from her husband-petitioner. The evidence adduced by respondent No.-1 in Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/4/2024 10:02:03 AM 6 CRR No. 1791 of 2023 respect to domestic violence caused by the petitioner and his family members as well as the income of petitioner-husband remain unchallenged as the petitioner did not appear at the stage of evidence and was proceeded ex-parte. Therefore, there is no reason to disbelieve the unchallenged testimony of respondent No.1/wife.
9. It is apparent that respondent No.1/wife filed an affidavit on 28.10.2021 before learned appellate Court describing income of petitioner, however, petitioner has not contradicted the factum of income shown by respondent No.1 in her unchallenged testimony as well as in her affidavit, therefore, learned appellate Court rightly held that petitioner/husband is earning Rs.75,000/- per month in the light of law laid down in the case of Rajnesh Vs. Neha, (2021) 2 SCC 324.
10. It is well settled that merely on ground that wife is earning some income cannot be debarred from maintenance. Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/4/2024 10:02:03 AM 7 CRR No. 1791 of 2023
11. Looking to facts and circumstances of the case as well as social, financial and family condition of parties so also the price index now-a-days, the maintenance amount awarded by the Appellate Court does not appear to be on higher side.
12. In the light of above discussion, no interference is required in impugned order passed by Appellate Court. Accordingly, this revision fails and is hereby dismissed.
(Sunita Yadav) Judge LJ* Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/4/2024 10:02:03 AM