Allahabad High Court
Smt. Nidhi Jain And Others vs State Of U.P. And Another on 1 December, 2016
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 44 Case :- CRIMINAL REVISION No. - 5550 of 2010 Revisionist :- Smt. Nidhi Jain And Others Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- A.K. Ojha Counsel for Opposite Party :- Govt. Adovcate Hon'ble Amar Singh Chauhan,J.
This criminal revision has been filed against the order dated 30.10.2010 passed by the Principal Judge, Family Court, Jhansi in Case No. 302 of 2009 whereby the application moved under section 125 Cr.P.C. by the revisionist-Smt. Nidhi Jain was rejected.
However, by the same order dated 30.10.2010, learned Judge allowed maintenance to revisionist Nos. 2 and 3 Shreyash Jain and Aditya Jain, minor sons of the revisionist and opposite party No. 2 at the rate of Rs. 2000/- (rupees two thousand) per month each from the date of order, which is not under challenge in this revision.
The facts which are requisite to be mentioned for adjudication of this revision are that an application under section 125 of Code of Criminal Procedure was moved by the applicant-revisionist Smt. Nidhi Jain for herself and on behalf of her minor sons Shreyash Jain and Aditya Jain to the effect that her marriage took place with opposite party-Devesh Jain on 10.5.2003 as per Jain rites. Her husband Devesh and his family members were not satisfied with the dowry and they used to misbehave with the applicant. From their wedlock two sons were born. Devesh-opposite party filed a suit for divorce under section 13 of the Hindu Marriage Act, but thereafter matter was compromised and they used to live together as husband and wife. After some times again, opposite party filed a suit for divorce and tortured her to the extent that it became impossible for the applicant to live in her in-laws house. On 18.8.2009 applicant No. 1 along with her minor sons were kicked out of the house and since then she is dependent upon her parents. It is also alleged in the application that opposite party is a businessman and earns Rs. 1,00,000/- (rupees one lac) per month. In addition thereto he also earns Rs. 50,000/- (rupees fifty thousand) from flour mill.
In his written argument Devesh Jain, opposite party denied the allegations leveled in the application under section 125 Cr.P.C. It is mentioned that neither he nor his family members ever demanded money nor ever beaten her. Revisionist is living in her Maika on her own wishes. It is further mentioned that conduct of the revisionist-wife was not good towards her in-laws and she used to quarrel and insult them. He also filed a suit for divorce in the Family Court at Bhopal, which is pending. Revisionist-wife is M.Sc. and gives tuition and earns Rs. 15,000/- per month, whereas his income is Rs. 1,17,454/- yearly.
The learned Principal Judge, Family Court, Jhansi after evaluating the evidence adduced by the parties, rejected the claim of the applicant-Smt. Nidhi Jain on the ground that she does not follow Jainism and criticized her husband and his family members. She also criticized her in-laws due to inter castes marriage of her Nand. She also address her father-in-law as 'Hakla' and mother-in-law as 'Tooti' and insult them and due to her misbehaviour and character, she could not adjust herself in her in-laws house. However, by the same order learned Judge granted maintenance to the minor sons Shreyash and Aditya.
Heard Shri A.K. Ojha, learned counsel for the revisionists, Shri Dharmendra Kumar Mishra, learned counsel for opposite party No. 2 and learned Additional Government Advocate and perused the record of the case.
Learned counsel for the revisionists submits that learned Family Court has erred in rejecting the claim of the revisionist No. 1 Smt. Nidhi Jain only on the ground that she failed to adjust herself in the family of her husband, but wife's right to claim maintenance can only be denied in the circumstances as provided under Section 125(4) of the Code.
Learned counsel for the revisionists further submitted that opposite party No. 2 is running a firm in the name and style of M/s Jain Enterprises and earning Rs. 100,000/- (rupees one lac) per month and also has a flour mill in which he earned Rs. 50,000/- (rupees fifty thousand) per month and his economically condition is very sound, whereas the revisionist No. 1 is hand to mouth and has no earning to support her livelihood. It has also been submitted that on being harassed and tortured for the demand of dowry of Rs. 500,000/- for extension of business, the revisionist has left the house of her husband.
Per contra, learned counsel for opposite party No. 2 supported the judgement of the Family Court and argued that the judgement is reasoned one and does not require any interference by this Court. The revisionist could not adjust herself in her in-laws house due to her bad nature and conduct for which her husband cannot be blame.
It is also contended that on account of her bad nature and conduct her claim for custody of minor sons was rejected by the Division bench of this Court in First Appeal From Order No. 86 of 2016.
Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.:
Order for maintenance of wives, children and parents:-
125. (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct."
From perusal of the aforesaid provisions, it is clear that an order under section 125 Cr.P.C. can be passed, if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife.
Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The Court held as under:
"Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636.
A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.
In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:
"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."
After going through the record, it is clear that the applicant-revisionist has left the house of her husband on being harassed, tortured for the demand of dowry. Admittedly, the revisionist has given two male issues to the husband-Devesh Jain. In the circumstances it cannot be inferred that she has left the house of her husband without any reason. Almost, no wife is supposed to leave the house of her husband without any reason. For rejecting the claim of the revisionist the lower court did not touch the ground mentioned in section 125(4) Cr.P.C.. The claim of the revisionist was rejected only on the ground that she has failed to adjust herself in the family of her husband.
It is to be made clear that proceeding relating to entrusment of custody of the minor is altogether different and paramount consideration in that proceeding is the interest of the minor, whereas the proceeding initiated under section 125 Cr.P.C. is summary in nature and the purpose is to achieve the social purpose to prevent vagrancy and destitution and also to ameliorate orphancy. It provided speedy remedy for supplying food and clothing and shelter to the deserted wife. It was not necessry to examine to whole evidence threshold, rather in a case under section 125 Cr.P.C. the trial court is to take a prima facie view of the matter and it is not necessary for the Court to go into the matrimonial dispute between the parties in details. Maintenance cannot be denied to the wife if she is earning hand. Wife's right to claim maintenance can only be denied in the circumstances only as provided under section 125(4) Cr.P.C.
The Hon'ble Supreme Court in Laxmi Bai Patel vs. Shyam Kumar Patel 2002 (44) ACC 1102 SC has held as under:
"To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under sub-section (4) of the said section."
Principle is that when prima facie marriage is established, maintenance should be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The object is to achieve social purpose and to prevent vagrancy and destitute.
The applicant-revisionist is trying to get maintenance since 02.9.2009 through the application but not even a single penny in lieu of maintenance has been received from her husband. The proceeding under section 125(4) Cr.P.C. provides a speedy remedy for supply of food, clothing and shelter to the deserted wife whereas the opposite party no. 2 has failed to establish that applicant-revisionist without any sufficient reason refused to live with him.
In view of what has been indicated above, the impugned order passed by the Principal Judge, Family Court, Jhansi is not justified. Therefore, the impugned order is not liable to be sustained.
The revision is allowed.
The impugned order, passed by the Principal Judge, Family Court, Jhansi in Case No. 302 of 2009 is hereby set aside and the matter is remanded back to the court concerned for decision afresh expeditiously, preferably within three months.
Dated: 01.12.2016 Ishrat