Madhya Pradesh High Court
Vishnu vs Radhabai on 26 February, 2024
Author: Prakash Chandra Gupta
Bench: Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 26 th OF FEBRUARY, 2024
CRIMINAL REVISION No. 1049 of 2017
BETWEEN:-
VISHNU S/O KALURAM NAAI, AGED ABOUT 25 YEARS,
OCCUPATION: AGRICULTURIST AND HAIR SALOON
VILLAGE- PREMPURA P.S. AND TEH. KHILCHIPUR,
RAJGARH (BIAORA) (MADHYA PRADESH)
.....PETITIONER
(BY SHRI V.S.PANWAR, ADVOCATE.)
AND
RADHABAI W/O VISHNU NAAI, AGED ABOUT 22 YEARS,
VILLAGE JETPURAKALA TEH.KHILCHIPUR, RAJGARH
(BIAORA) (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT THOUGH SERVED.)
T h is revision coming on for orders this day, t h e cou rt passed the
following:
ORDER
The petitioner/ husband has filed this revision petition u/S 397 read with section 401 of the Cr.P.C., being aggrieved of the order dated 29/07/2017, passed by learned Principal Judge, Family Court, Rajgarh in miscellaneous Criminal Case No.164/2016, wherein the learned trial court has partly allowed the maintenance application u/S 125 of Cr.P.C. filed by the respondent/ wife and directed the petitioner to pay maintenance of a sum of Rs.2,500/- per month to respondent/ wife.
2. It is admitted fact that marriage of petitioner and respondent was Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20 2 solemnized around 5 years before the filing of the petition according to the Hindu rites and ritual, therefore, both of them are legally wedded husband and wife.
3. Brief facts of the maintenance application are that one year after solemnization of the marriage of the parties, the respondent/ wife used to live at her matrimonial house, since then petitioner used to physically assault her after getting intoxicated and used to demand Rs.1,00,000/- and a motorcycle as dowry. 4-5 months before, the petitioner had assaulted the respondent by fists and kicks and had got her out of his house, and told her that if she brought Rs.1,00,000/- and a motorcycle, then only he will let her live in his house. Since then respondent/ wife has been living with her parents. On 20/04/2016 petitioner/ husband went to maternal house of the respondent/ wife after getting intoxicated and abused her in filthy language, and demanded the dowry articles as mentioned above. The petitioner/ husband had even attempted to physically assault the parents of the respondent/ wife. Then on 21/04/2016 a report (Ex.P/1C) was filed by respondent at P/S Khilchipur. Police did not proceed against the same, then she filed a complaint (Ex.P/ 2C) punishable u/s 498-A, 384, 385, 244 and 506 of IPC against the petitioner/ husband. Respondent/ wife has no source of income and is incapable to maintain herself. Petitioner has 10 Bigha agricultural land from which he earns a sum of Rs. 5,00,000/- and he runs a saloon shop and earns around Rs.20,000/- per month. This way, the applicant bearing sufficient means has the capacity to maintain the respondent/ wife. Respondent/wife prayed to provide maintenance of a sum of Rs. 7,000/- from the petitioner/ husband.
4. In reply the petitioner denied all averments of the maintenance application except admitted facts and he pleaded that around 1 year ago, Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20 3 brother of respondent/ wife, Rodu alias Rajesh, had brought back the respondent to her maternal house and had said that he will drop her back after 8 days. After 8 days, respondent did not come, then the petitioner had went to bring her back but parents of respondent/ wife did not send her back. Almost 15 days later, father of petitioner/Kalu Ram, uncle Mohan, Unkar and other relatives had went to the maternal house of the respondent/ wife, but father of the respondent did not agree to send the respondent back to her matrimonial house. It is also pleaded that the respondent is a healthy lady, does labour work and earns around Rs.250/- per day. She is living apart from petitioner/husband without any sufficient cause, hence, she is not entitled for any maintenance from the petitioner.
5. The respondent/ wife Radhabai (PW/1) examined herself and she also examined her father Mangilal (PW/2) and Poorilal (PW/3) in her support. The petitioner Vishnu (DW/1) also examined himself and Madanlal (DW/2).
6. The learned trial court, on due consideration of the evidence adduced by the parties has allowed the application partly and awarded maintenance of Rs.2,500/- per month to respondent/ wife from the date of impugned order.
7. Learned counsel for the petitioner submits that, the learned trial court has failed to consider the fact that earlier the respondent had filed an application u/s 12 of the Protection Of Women From Domestic Violence Act, 2005 (hereinafter referred as DV Act), which was dismissed. Therefore, subsequent maintenance application u/s 125 of Cr.P.C. was not maintainable. It is also submitted that the petitioner is ready to keep the respondent alongwith him but the respondent/ wife is herself not willing to reside with him. Respondent has no sufficient cause to live apart from the petitioner. Therefore, she is not entitled Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20 4 for maintenance. It is also submitted that the respondent earns around Rs.250 per day by doing labour work. Therefore, she is capable to maintain herself. Hence, learned counsel has prayed to set aside the impugned order.
8. I have heard learned counsel for the petitioner and perused the record.
9. So far as the submission of the learned counsel for the petitioner that after dismissal of application u/s 12 of DV Act, subsequent application for maintenance u/s 125 of Cr.P.C. is not maintainable, in this respect, there is a well settled principle of law that it cannot be a ground for rejection of maintenance if the applicant is denied for maintenance from one provision of law. Furthermore, if the applicant is granted maintenance in distinct provisions, the amount of maintenance can be adjusted accordingly. Similarly, in the instant case as well, the case of respondent was rejected for maintenance under DV Act, but the same cannot be a ground to reject the application for maintenance u/S 125 of Cr.P.C. Hence, the aforementioned submissions advanced by the learned counsel for the petitioner/ husband is not acceptable.
10. As per statement of respondent/ wife Radhabai (PW/1), her father (PW/2) and Poorilal (PW/3), it appears that the petitioner had demanded Rs.1,00,000/- in cash and a motorcycle as dowry, the petitioner was unable to fulfil his demand. Thereafter, the petitioner/ husband had got the respondent/wife out of his home after assaulting her physically, since then she has been living in her maternal house. It also appears that when the respondent started to live with her parents, the petitioner again went to her parents house and demanded again the aforementioned articles of dowry, then the respondent filed a written complaint at police station, thereafter she also filed a complaint case against the petitioner. Though, petitioner Vishnu (DW/1) denied in his cross-examination to have beaten the respondent and have demanded dowry Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20 5 from her. Statement of respondent is supported by report (Ex.P/1C) filed at police station and written complaint (Ex.P/ 2C), therefore, statement of respondent and her witnesses is reliable.
11. In the case of Smt. Anju Mishra Vs. Arun Mishra [ILR (2018) MP 2549], coordinate bench of this court opined that cruelty does not necessarily mean cruelty in connection with dowry or any property, any sort of physical cruelty would be sufficient reason to live separately has to be considered by the behaviour of the husband and if he continuously behaves in cruel manner by harassing mentally or physically, then wife is not expected to continue living with her husband.
12. In the instant case, though the petitioner stated that he tried to bring respondent to his house, but she did not come long. His statement is supported by Madanlal Sen (DW/2), but considering the statement of both the parties it appears that the respondent had sufficient cause to live separate from petitioner and she started to live at her parent's house. Therefore, it does not appear that the respondent is living separately from the petitioner without any sufficient cause. Therefore, the learned trial court has rightly held that the respondent has sufficient cause to live separate from the petitioner.
13. So far as submission of learned counsel for the petitioner regarding the respondent having sufficient means to maintain herself is concerned, the petitioner Vishnu (DW/1) has not stated anything in his deposition and the respondent has denied that she earns Rs.250 per day from labour work. Therefore, it does not appear that the respondent is able to maintain herself. Therefore, learned trial court has rightly held that the petitioner is unable to maintain herself.
Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20 614. Respondent and her father deposed that the petitioner works as a barber and by agriculture earns a sum of Rs. 4-5 Lakhs per year. Though in this respect no document has been filed by the respondent. In this respect petitioner has not stated anything in his deposition. In the case of Rajnesh Vs. Neha and another reported in 2021 Vol.2 SCC 324 the Apex Court has held in paragraph 79 and 80 as under:-
"79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself.
The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support.
Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]"
15. In the instant case, admittedly the respondent is the legally wedded wife of the petitioner. The petitioner/ husband has sufficient means. Hence, he is legally liable to maintain his wife who is unable to maintain herself. Considering the inflation, the amount of maintenance appears reasonable.
16. In view of foregoing discussion, in view of this court the impugned Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20 7 order is just and proper and there is no infirmity, illegality or impropriety. The maintenance so awarded by the learned trial court is justified. Hence, the learned trial court has not erred in considering the evidence available on record in passing the impugned order.
17. Accordingly, the revision petition filed on behalf of the petitioner is hereby dismissed and impugned order passed by trial court is affirmed.
(PRAKASH CHANDRA GUPTA) JUDGE ajit Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-03-2024 17:56:20