Rajasthan High Court - Jodhpur
Hari Kishan Soni vs Shailshree on 25 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 985/2021
Hari Kishan Soni S/o Sh. Asha Ram Soni, Aged About 23 Years,
Near Jain Girls Pg College, Bidasar Baari, Bikaner (Raj.).
----Petitioner
Versus
1. Shailshree W/o Sh. Hari Kishan Soni, D/o Sh. Ram
Swaroop Soni, Aged About 28 Years, Behind Bangali
Mandir, Rani Bazar, Bikaner (Raj.).
2. Vishnu (Minnor) S/o Sh. Hari Kishan Soni, Aged About 2
Years, R/o Behind Bangali Mandir, Rani Bazar, Bikaner
(Raj.).
----Respondents
Connected With
S.B. Criminal Revision Petition No. 113/2022
1. Shailshree W/o Sh. Harikishan Soni, D/o Ramswaroop
Soni, Aged About 30 Years, B/c Soni, At Present Residing
At Backside Of Bangali Mandir, Rani Bazar, Bikaner.
2. Vishnu Narayan S/o Harikishan Soni, Aged About 2 Years,
Through His Natural Guardian Mother Smt. Shailshree At
Present Residing At Backside Of Bangali Mandir, Rani
Bazar, Bikaner.
----Petitioners
Versus
Harikishan Soni S/o Sh. Asharam, Aged About 32 Years, B/c
Soni, At Present Residing At Backside Of Bangali Mandir, Rani
Bazar, Bikaner.
----Respondent
For Petitioner(s) : Mr. N.L. Joshi a/w Ms. Kirti Pareek
For Respondent(s) : Mr. Haider Agha a/w Mr. Salman Agha
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved On: 23/05/2022 Pronounced On: 25/05/2022
1. Both the Revision Petitions have been preferred against the same impugned order, dated 26.10.2021, passed by Family Court (Downloaded on 25/05/2022 at 09:16:05 PM) (2 of 8) [CRLR-985/2021] No. 2, Bikaner in Criminal Misc. Application No. 131/2020, whereby the application for maintenance under Section 12 Cr.P.C. was accepted and the husband Hari Kishan was directed to pay a sum of Rs. 30,000/- towards maintenance per month from the date of application, with the following prayers:-
In S.B. Criminal Revision Petition No. 985/2021:
"It is, therefore, prayed that this Criminal Revision petition may kindly be allowed by quashing and setting aside the impugned order dated 26.10.2021 passed in Family Court No. 02 Bikaner"
In S.B. Criminal Revision Petition No. 113/2022:
"It is most humbly prayed before this Hon'ble Court that
a) The present revision shall be accepted and allowed.
b) Order dated 26.10.2021 passed by Family Court No.2 Bikaner in Civil Miscellaneous Case No. 131/2020 (709/2019) titled "Smt. Shailshree & Anr. Vs. Hari Kishan Soni" shall be modified and the maintenance amount granted to the revisionists shall be enhanced to Rs. 50,000/- per month.
c) Litigation expenses shall be granted to the revisionists.
d) Order of cost shall be passed in favor revisionists.
And to pass any other order in favor of Revisionists which this Hon'ble Court deems fit in the ends of Justice and good conscience."
2. Both petitions arise out of a common controversy, and the brief facts of the same as noticed by this Court are that the Husband, Hari Kishan and the wife, Shailshree married on 21.07.2018 and on 07.05.2019, a son was born to them out of the wedlock. Owing to discord among the parties, they separated and a maintenance application came to be filed by the wife, on 11.10.2019 before Family Court No.2 Bikaner. The learned Court (Downloaded on 25/05/2022 at 09:16:05 PM) (3 of 8) [CRLR-985/2021] awarded interim maintenance, payable monthly from the date of application, of Rs. 30,000 to the wife and son, vide order dated 03.04.2021. And that on 26.10.2021, the learned Court below passed final order, whereby the amount of Rs. 30,000, payable monthly to the wife and son by the husband, towards maintenance, from the date of application. The husband is before this Court seeking quashing of the impugned order, while the wife is before this Court seeking modification of the impugned order, seeking an enhancement of the maintenance amount awarded to her, and her son, vide the impugned order.
3. After hearing learned counsel for both parties on previous occasions, this Court, vide order dated 27.02.2022, at the behest of the parties, directed them to appear before the Mediation Cell of this Court at 11:00 a.m. on the same day. The Mediator's Report, dated 05.05.2022, was placed before this Court on 09.05.2022, wherein it was stated that the husband and the wife had amicably resolved the dispute, and this Court directed the said parties to abide by the aforementioned Mediator's Report and that the parties would live together along with their minor son for a period of two months, after which this Court would further consider whether any fresh orders would need to be issued.
4. However, both the husband and wife, petitioners in the cross cases were present in person accompanied by their respective counsel jointly submit that due to continuing acrimony between the parties, that living together was no longer an option and pleaded that compliance with the Mediation Report, as discussed above, was not possible.
(Downloaded on 25/05/2022 at 09:16:05 PM)
(4 of 8) [CRLR-985/2021]
5. Learned counsel for the revisionist-petitioner in S.B. Criminal Revision Petition No 985/2021 (hereinafter referred to as 'the first petition) submits that the averment of the wife, that the husband was a goldsmith by profession and that his income is about Rs. 1 lakh per month is unsubstantiated. And that, he is in fact doing a private job at a shop and earning only about Rs. 6,000/- And that, the learned Court below has erred in determining the maintenance amount to be Rs. 30,000/- since it is a well settled legal position that the maintenance should be 25 percent of the total income, and therefore should be reduced to Rs. 1,500/-
6. Learned counsel for the revisionist-petitioner in the first petition further submits that his wife is in fact an educated professional, and that while she is preparing for competitive examinations while also giving coaching classes from which she earns an income of around RS. 25,000 to 30,000/-. 6.1 Learned counsel further submits that he filed an application under Section 9 of the Hindu Marriage Act, 1955 and also rented a separate house for his wife and child, but that she did not come with so ultimately the same was withdrawn.
6.2 Learned counsel also submits that he was unable to satisfy the order of interim maintenance owing to his poor economic condition, and that the learned Court below without taking consideration the same, proceeded to pass the final order against the husband ex-parte.
6.3 Learned counsel further submits that the wife is in non- compliance with the guidelines laid down in the precedent law of Rajnesh Vs. Neha and Ors. (2021) 2 SCC 324 and has not made true and full disclosures regarding income and property. (Downloaded on 25/05/2022 at 09:16:05 PM)
(5 of 8) [CRLR-985/2021]
7. Learned counsel for the revisionist-petitioner, in the second petition i.e. the wife, submits that the wife was mistreated by her husband and her in-laws and demands for dowry were made from her. And that the same was also mentioned in the Section 125 application so filed by her before the learned Family Court. 7.1 Learned counsel further submits that the husband owns a jewelry shop in the name of Dawar Jewelers in Taliwada, Bikaner and has an income of about Rs. 1 lakh per month. And that, due to his non-compliance with the order of the interim maintenance, passed by the learned Court, the final order was passed ex-parte. 7.2 Learned counsel further submits that the husband did not comply with the final order of maintenance as aforementioned, and that the wife had to move multiple execution applications, despite which there was non-compliance on his part, and therefore the learned Court below issued a warrant for his arrest to ensure his presence.
7.3 Learned counsel also submits that learned Court below has erred in directing the sum of Rs. 30,000/- to be paid by the husband to the wife towards monthly maintenance, and that looking to the income of the husband, it should be enhanced. 7.4 Learned counsel further submits that the husband not only own a jewelry shop, as aforementioned, but also has a number of fixed properties in Bikaner.
7.5 Learned counsel also submits that there was not a single line of cross examination by non-revisionist husband and in such scenario tht all the averments remained uncontroverted. 7.6 Learned counsel placed reliance on the following case laws:-
7.6.1 Rajesh Burman Vs. Mitul Chatterjee 2008 (10) SRJ (Downloaded on 25/05/2022 at 09:16:05 PM) (6 of 8) [CRLR-985/2021] 533 wherein te Hon'ble Apex Court took into consideration Atul Sashikant Mude Vs. Niranjana Atul Mude AIR 1998 Bombay 234 wherein the Hon'ble Court held that the competent Court is empowered to pass interim and ad-interim orders of maintenance, and that the inclusive definition of the same would include food, clothing, residence, education, medical treatment etc. and R. Suresh Vs. Smt. Chandra AIR 2003 Karnataka 183 and Ajay Saxena Vs. Smt. Rachna Saxena AIR 2007 Delhi 39 the Hon'ble Karnataka High Court and Hon'ble Delhi High Court respectively, also ruled in the manner discussed hereinabove, and held that maintenance would include medical expenses within its purview.
7.6.2 In Komalan Amma Vs. Kumara Pillai Raghavan Pillai and ors. AIR (2009) SC 636, the Hon'ble Apex Court held that while making a consideration of the quantum of maintenance, the amount towards rental expenses along with expenses towards shelter, food, education, medical attendance and treatment. 7.6.3 In Manohar Lal Vs. Durgesh (2016) DMC 719 Raj.
wherein this Court after taking into consideration the income of the husband, enhanced the amount of maintenance awarded to the wife.
8. The revisionist-petitioner in the first case is the respondent in the second and vice versa.
9. Heard learned counsel for both the parties and, perused the record of the case and the judgments cited at the Bar.
10. This Court observes that the learned Family Court, in passing the impugned order, dated 26.10.2021, has taken into (Downloaded on 25/05/2022 at 09:16:05 PM) (7 of 8) [CRLR-985/2021] consideration the income of the parties herein, from the evidences placed on record before it.
11. This Court observes that the learned Court below has dealt with the averment made by the husband that he earns an income of Rs. 6000/- a month, and has categorically found no merit in the same. The learned Court, after taking into due consideration the salary certificate of the husband, dated 04.12.2020 and the photographs of the same, found that the husband was in fact a proprietor of the jewelry business, and was found to be sitting at the counter of such business, and that he has made sales of ornaments on behalf of such business, and his handwriting and signatures were found on the receipts issued on behalf of the jewelry business, specifically on receipt dated 01.02.2021 whereby sale of some silver ornaments were found to be made. And therefore, the averment that the husband making an income of only about Rs. 6000/- per month, was therefore found to be not believable.
12. The learned Court below recorded the finding that the wife and the minor child are fully dependent on her parents, and that although her parents may be government servants, that the husband cannot shirk the responsibility of maintaining his wife and minor son.
13. The learned Court below also recorded the finding that the husband has not complied with the order of interim maintenance, dated 03.04.2021, towards his wife and minor son, and was in fact absconding. Further, that although the husband has the sufficient means to maintain his wife and minor son, but is wilfully abstaining from doing the same.
(Downloaded on 25/05/2022 at 09:16:05 PM)
(8 of 8) [CRLR-985/2021]
14. This Court further observes that the learned Court has passed a reasoned and speaking order, and upheld the order of interim maintenance of awarding Rs. 30,000/- per month, Rs. 25,000/- towards the wife and Rs.5,000/- towards the minor son, from the date of application, after taking into due consideration the overall facts and circumstances of the case, and a thorough perusal and appreciation of the evidences placed on record before it, as discussed hereinabove.
15. This Court, in light of the above made observations, finds that the impugned order dated 26.10.2021, passed by the learned Family Court does not suffer from any infirmity, and is hereby affirmed and upheld.
16. Resultantly, the present revision petitions are dismissed. Accordingly, all pending applications, if any, are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
176-SKant/-
(Downloaded on 25/05/2022 at 09:16:05 PM) Powered by TCPDF (www.tcpdf.org)