Madhya Pradesh High Court
Smt. Anju Mishra vs Arun Mishra on 31 July, 2018
THE HIGH COURT OF MADHYA PRADESH AFR
1 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)
Indore, Dated : 31/07/2018
Shri Nilesh Dave, Advocate for applicants.
Shri Mohan Sharma, Advocate for respondent.
This application under Section 482 of Cr.P.C. has been filed against the order dated 20/2/2015 passed by the Additional Sessions Judge, Khachrod, District Ujjain in Criminal Revision No.217/2013, by which the order dated 26/6/2013 passed by JMFC, Nagda, District Ujjain in M.Cr.C. No.16/2012 was affirmed.
By order dated 26/6/2013 the JMFC, Nagda, District Ujjain partially allowed the application filed by the applicants under Section 125 of Cr.P.C. The application filed by applicant no.1 was rejected, whereas the application filed on behalf of applicant no.2 was allowed and the respondent was directed to pay the maintenance amount to the applicant no.2 at the rate of Rs.1,500/- per month.
The necessary facts for disposal of present application in short are that the applicants filed an application under Section 125 of Cr.P.C. on the allegation that the applicant no.1 was married to the respondent on 21/11/2007 as per Hindu rites and rituals and the applicant no.2 has born out of their wedlock. It was mentioned in the application that sufficient dowry was given at the time of marriage and the applicant no.1 has performed her marital duties properly, however, the mother of the respondent and his sisters Geeta and Meena were harassing the applicant no.1 and they were provoking the respondent to demand dowry from her parents and because of that she was being harassed. It was further alleged that the respondent under the guidance of his family members used to abuse her and beat her and was pressurizing her to bring a motorcycle, furniture as THE HIGH COURT OF MADHYA PRADESH AFR 2 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) well as cash amount from her parents. Under the hope and belief that the behaviour of the respondent and his family members would improve, the applicant no.1 continued to bear the harassment at the hands of the respondent. The applicant no.1 ultimately lodged a report on 18/9/2011 against the respondent, however, the police did not take any action and closed the report under Section 155 of Cr.P.C. After this, the behaviour of the respondent and his family members became more cruel towards the applicants and thereafter the applicant no.1 was turned out of her matrimonial house after beating her. Accordingly, the applicant no.1 lodged a report against the respondent and his family members for offence under Section 498-A of IPC and on the basis of the said report Crime No.302/2010 was registered. During pendency of those proceedings the applicant no.1 and the respondent entered into a compromise on the promise made by the respondent that he would keep the applicant no.1 properly and also tendered the apology for his previous misbehaviour and since the applicant no.1 was interested in saving her marital life, therefore, she forgave him and filed an application for compounding and started living with the respondent. After the reconciliation, the behaviour of the respondent and his family members remained proper, but after some time they again started harassing her and with an intention to take revenge of the FIR lodged by the applicant no.1, the respondent got a complaint filed against the applicant and her family members through her sister-Geetabai and thereafter, turned the applicant no.1 out of her matrimonial house. In spite of all possible efforts, the respondent did not agree to keep the applicant no.1 with him and accordingly, the applicant no.1 issued a notice on 17/11/2011 asking for THE HIGH COURT OF MADHYA PRADESH AFR 3 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) maintenance, but the respondent did not pay the maintenance. Accordingly, the applicant filed an application for grant of maintenance under Section 125 of Cr.P.C. It was also mentioned in the application that the respondent is earning Rs.5,000/- per month by way of salary, as he is working as a contract teacher and is also earning Rs.10,000/- by running tution classes. The applicant no.1 has no independent source of income and is unable to maintain herself and is dependent on her father. Her father does not have much income, so that he can look after the applicants. Accordingly, a prayer was made for grant of Rs.5,000/- per month to the applicant no.1 and Rs.2,000/- to the applicant no.2.
Respondent filed his reply and pleaded that since the applicant no.1 had lodged a false report for offence under Section 498-A of IPC, therefore, she agreed for compromise. His sister has also lodged a criminal complaint against the applicant no.1 and her brother-Devendra Pandey, which is pending and by way of counterblast to the complaint filed by the sister of the respondent, the present application has been filed. It was further alleged that the applicant no.1 herself has broken all her marital ties with the respondent and she on her own is residing voluntarily in her parents home and even today the respondent is ready and willing to keep the applicants with him. It was further alleged that since the parents of the applicant no.1 are more financially strong in comparison to the respondent, therefore, the applicant no.1 is not ready and willing to spend her life in limited resources and only because of the intervention of her brother and other family members, she is creating all sorts of trouble in her matrimonial house.
The trial court after recording the evidence of the parties, THE HIGH COURT OF MADHYA PRADESH AFR 4 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) partially allowed the application and awarded an amount of Rs.1,500/- per month to the applicant no.2, whereas rejected the application filed on behalf of applicant no.1 on the ground that she is residing separately without any reasonable reason.
Being aggrieved by the order dated 26/6/2013 passed by the JMFC, Nagda, District Ujjain in M.Cr.C. No.16/2012, the applicants filed a revision before the Court of Fourth Additional Sessions Judge, Khachrod, District Ujjain, which was registered as Criminal Revision No.217/2013, however, the said revision has also resulted in dismissal.
Challenging the orders passed by the courts below, it is submitted by the counsel for the applicants that in fact the courts below have committed material illegality by rejecting the claim of the applicant no.1 on the ground that she is residing separately without any reasonable reason. It is submitted that the applicant no.1 was being harassed by the respondent and his family members and accordingly, she lodged a report and on the basis of which, the respondent and his family members were tried for an offence under Section 498-A of IPC and since the respondent promised the applicant no.1 that now he would not repeat the same mistakes, which he had committed on earlier occasion, therefore, the application for compounding of offence was filed. Since the offence under Section 498-A of IPC is not compoundable, therefore, the said application was rejected by the Magistrate and in order to save her marital life, the applicant no.1 on the very same day did not depose anything against the respondent, as a result of which, he was acquitted. This shows the attempt on the part of the applicant no.1 to reconcile the matter and to save her marital life, however, because of excessive intervention of the sisters and the mother of the THE HIGH COURT OF MADHYA PRADESH AFR 5 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) respondent, the respondent under the teachings of his family members continued to harass and treat the applicant no.1 with cruelty and accordingly, she was turned out of her matrimonial house and under these circumstances, it cannot be said that the applicant no.1 is residing separately without any reasonable reason.
Per contra, it is submitted by the counsel for the respondent that both the courts below after appreciating the evidence have given concurrent findings of fact and therefore, in exercise of power under Section 482 of Cr.P.C. the finding of fact should not be interfered with unless and until they are perverse and no perversity has been pointed out by the counsel for the applicants and, therefore, this application filed under Section 482 of Cr.P.C. is liable to be rejected.
Heard learned counsel for the parties.
The applicant no.1 had examined herself as PW-1, her father Maheshchand as PW-2, her neighbour Santosh Sahu as PW-3 and her brother Devendra Pandey as PW-4, whereas the respondent examined himself as DW-1 and did not examine any other witness in his support.
By referring to the evidence of the parties, it is submitted by the counsel for the respondent that the behaviour of the respondent and his family members was not good and after some time of marriage, they started harassing her on the ground of bringing less dowry. They were demanding motorcycle and other household articles alongwith cash amount. Consequently, she lodged the FIR and the respondent and his family members came to her parents home and tendered their apologies and in order to save her married life, she compromised the matter. After the compromise, behaviour of the respondent was good for THE HIGH COURT OF MADHYA PRADESH AFR 6 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) 2-3 months, but thereafter again he started abusing her and beating her on the ground of dowry. The monthly income of the respondent is Rs.10,000/- and he is also running tuition classes. It is submitted that specific statement was given by the applicant no.1 that the sister of the respondent is residing with the respondent and, therefore, the suggestion was given that because of this fact the applicant no.1 has a grievance that why the sister of the respondent is residing in the said house. Although the suggestion was denied, but it appears that since the sister of the respondent is residing with the respondent, therefore, the applicant no.1 has a grievance. The counsel for the respondent also pointed out the admission made by the applicant no.1 in her cross-examination that in case if the respondent agrees to reside at a distant place from the existing house, then still she is ready and willing to stay with the respondent. By referring to the application filed under Section 125 of Cr.P.C., it is further submitted by the counsel for the respondent that since the applicant no.1 was aggrieved by the fact that the mother and sister of the respondent are residing with him, therefore, she wanted that respondent should separate himself from his family members and should stay alongwith the applicant no.1 in a separate house and only because of this, she was creating all sorts of nuisance in her matrimonial house and accordingly, without any reasonable reason she is residing separately. By referring to the evidence of applicant no.1, it is further submitted by the counsel for the respondent that in fact it is the applicant no.1 who wants that the respondent should reside with her separately from his family members. The house of the father of the applicant no.1 is situated in the same colony and she used to go to her parents home as per her own wishes THE HIGH COURT OF MADHYA PRADESH AFR 7 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) and now she is residing separately without any reasonable reason. However, the counsel for the respondent accepted that in the cross-examination, the respondent has admitted that the matrimonial house of his sister is in Bihar, but she is residing at Nagda near the house of the respondent. A suggestion was given to the respondent that his sisters are interfering too much in the family life of the respondent and the applicant no.1 and they used to fight with the applicant no.1, however, the said suggestion was denied. It is further submitted by the counsel for the respondent that even if the entire allegations are accepted, then it is clear that the applicants have failed to prove beyond reasonable doubt that the applicant no.1 was being harassed because of any demand of dowry. The basic allegation is that since the applicant no.1 was aggrieved by the fact that the sisteres of the respondent are also residing in the same house, therefore, she wants a separate accommodation and under these circumstances, the courts below did not commit any mistake in rejecting the claim of the applicant no.1 for maintenance amount.
So far as the submission made by the counsel for the respondent that unless and until there is a harassment because of non-fulfillment of demand of dowry, the wife cannot claim maintenance is concerned, the same cannot be accepted. Cruelty does not necessarily mean that the said cruelty be only in connection with dowry or any property. Any sort of mental or physical cruelty would be sufficient. Section 125 of Cr.P.C. reads as under:-
"125. Order for maintenance of wives, children and parents.--(1) If any person having sufficient means neglects or refuses to maintain--
THE HIGH COURT OF MADHYA PRADESH AFR 8 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra)
(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 the 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:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] Explanation.--For the purposes of this THE HIGH COURT OF MADHYA PRADESH AFR 9 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) Chapter,--
(a) ―minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) ―wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
[(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.--If a husband has contracted marriage with another woman or keeps a THE HIGH COURT OF MADHYA PRADESH AFR 10 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) mistress, it shall be considered to be just ground for his wife's refusal to live with him. (4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
In the present case, the applicant no.1 has clearly stated in her application under Section 125 of Cr.P.C. that because of the intervention of the mother and sisters of the respondent, she is being harassed by the respondent. Section 125 (4) of Cr.P.C. deals with the circumstances, in which the wife is not entitled for maintenance amount. The "cruelty" has not been mentioned in Section 125 of Cr.P.C. The only requirement is that if a person neglects or refuses to maintain his wife or his children or his parents, then an order under Section 125 of Cr.P.C. can be passed, provided the wife is not living in adultery and without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent. In order to find out whether there is any sufficient reason for separate living or not, then the reason for separate living are to be taken into consideration and in this context, the behaviour of the husband would become material and if the husband continuously behaves in a cruel manner by harassing her either mentally or physically, then it cannot be expected that in spite of THE HIGH COURT OF MADHYA PRADESH AFR 11 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) harassment, the wife should continue to live with her husband. Under these circumstances, if the wife succeeds in establishing that the behaviour of the husband was cruel towards her, then it can be said that she has a sufficient reason to live separately from her husband. Thus, in case of cruelty whether it was in connection with demand of dowry or any other reason, the wife can claim maintenance amount from her husband.
If the behaviour of the respondent and his family members is considered in the light of the evidence led by the parties as well as in the light of the provisions under Section 125 (4) of Cr.P.C., then it appears that because of unwarranted excessive interference by the sisters of the respondent, the behaviour of the respondent was cruel towards the applicant no.1 and under these circumstances, the applicant no.1 was well within her rights to live separately from the respondent. Even otherwise, it is clear from the submissions of the counsel for the applicant no.1 that when the respondent promised her to improve his behaviour, then in order to save her married life, she entered into a compromise and filed an application under Section 320 of Cr.P.C., however, since the offence under Section 498-A of IPC is not compoundable, therefore, the said application was rejected and in order to save her married life, she did not make any allegation against her in-laws including the respondent and the respondent was acquitted of the charge under Section 498-A of IPC. If the intention of the applicant no.1 was to somehow get the respondent punished, then she would have never entered into a compromise with the respondent and that shows the basic anxiety of the applicant no.1 to save her married life and under these circumstances, because of the excessive intervention by the sisters of the respondent, who THE HIGH COURT OF MADHYA PRADESH AFR 12 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) himself has admitted that the matrimonial house of one of his sisters is in Bihar, but she is residing quite nearer to the house of the respondent, it is clear that the allegation of interference by the sisters of the respondent in the married life of the respondent and harassment by the respondent under the guidance and provocation of his sisters appears to be correct. Furthermore, it has also been accepted by the respondent that his sister had filed a criminal complaint against the applicant no.1 and her brother. Thus, it is clear that the respondent and his sisters were creating all sorts of trouble for the applicant no.1, as a result of which, she was deprived of her peaceful married life and under these circumstances, it cannot be said that if the applicant no.1 was residing in her parents home without any reasonable reason.
Under these facts and circumstances of the case, this Court is of the considered opinion that the courts below did not consider the evidence led by the parties in its proper perspective and, therefore, the finding of fact of living separately without any sufficient reason appears to be perverse.
Accordingly, the orders dated 26/6/2013 in M.Cr.C. No.16/12 and 20/2/2015 in Criminal Revision No.217/2013 passed by the trial court and the revisional court are hereby set aside and it is held that the applicant no.1 is also entitled for maintenance amount, as she is unable to maintain herself and the respondent has neglected to maintain her.
So far as the question of quantum of maintenance amount is concerned, it is clear from the evidence of the parties that the respondent was working as a teacher on contract basis and although there is an averment that he is also running coaching classes, however, there is no evidence with regard to the THE HIGH COURT OF MADHYA PRADESH AFR 13 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) income of the respondent from the coaching classes. However, one thing is clear that both the parties are financially not strong.
The Supreme Court in the case of Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 has held as under:-
''15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun (1997) 7 SCC 7 has held as follows: (SCC p. 12, para 8) "8. ... The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case.
At the same time, the amount so fixed cannot be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC 316, it has been ruled that: (SCC p. 320, para 6) "6. ... Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 falls within the 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, THE HIGH COURT OF MADHYA PRADESH AFR 14 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) 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 ."
17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash 1968 SCC Online Del 52 wherein it has been opined thus: (SCC On Line Del para 7)
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-bodied 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.
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 her 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 HIGH COURT OF MADHYA PRADESH AFR 15 M.Cr.C. No.2570/2015 (Smt. Anju Mishra and another Vs. Arun Mishra) 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.'' Considering the facts and circumstances of the case, this Court is of the considered opinion that the applicant no.1 is also entitled for maintenance amount at the rate of Rs.2,000/- per month.
So far as the maintenance amount awarded to the applicant no.2 is concerned, considering the financial as well as social status of the parties, this Court is of the considered opinion that the maintenance amount of Rs.1,500/- awarded to the applicant no.2 by the courts below is justified and does not require any interference.
Since the application for grant of maintenance under Section 125 of Cr.P.C. was filed on 23/12/2011 and the trial court by order dated 26/6/2013 had awarded the maintenance amount of Rs.1,500/- to the applicant no.2 from the date of the order, i.e. 26/6/2013, therefore, it is directed that the maintenance amount of Rs.2,000/- to the applicant no.1 shall also be payable from the date of the order passed by the Judicial Magistrate First Class, Nagda, District Ujjain, i.e.26/6/2013.
The application succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2018.08.06 10:18:45 +05'30'