Madhya Pradesh High Court
Janrel Singh vs Smt.Gurmit Kaur on 5 October, 2017
1 CRR 332/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
CRR 332/2014
Janeral Singh
vs.
Smt. Gurmeet Kaur and Another
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None for the parties
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ORDER
(05/10/2017) None for the parties even in the second round. It was also displayed in the Display Board that the case shall be taken for hearing but in spite of that, none appears for the parties. Under these circumstances, this Court is left with no other option but to decide this revision after going through the record.
(2) This revision has been filed under Sections 397, 401 of CrPC against the order dated 01/03/2013 passed by the Additional Principal Judge, Family Court, Gwalior in Case No.298/2009, by which the application filed by the respondents under Section 125of CrPC has been allowed and it has been directed that respondent No.1 is entitled to get maintenance @ Rs.4,000/- per month whereas respondent No.2 is entitled for maintenance @ Rs.3,000/- per month till he attains the age of majority.
(3) The necessary facts for the disposal of the present revision in short are that the respondent No.1 was married to the applicant on 21/02/2002 as per Hindu religious and custom. The respondent No.2 has been born out of their wedlock and respondent No.1 is residing separately from the year 2003. An application under Section 125 of CrPC was filed on 09/07/2009 i.e. about six years of separation. It is also clear that after the application under Section 125 of CrPC was filed, the applicant filed an application under Section 9 of Hindu Marriage Act for restitution of conjugal rights. It was alleged by the 2 CRR 332/2014 respondent No.1 that after the marriage, the applicant and his family members started passing taunts that the marriage has not been performed as per their financial status. When the respondent No.1 expressed the inability of her parents to give more dowry, then the applicant and his family members started harassing and they used to beat her on trivial issues. The applicant is in habit of consuming liquor and on several occasions, she was ousted from her matrimonial house. After the respondent No.1 got pregnant, she was sent to her parents' house. The respondent No.2 was born after cesarean operation but still neither the applicant nor his family members came to see the respondent No.2. After birth of the respondent No.2 when respondent No.1 went to her matrimonial house along-with her mother then the applicant and his family members demanded Rs.50,000/- . After great persuasion by the mother of the respondent No.1, the applicant allowed her to stay in the house but immediately after the mother of the respondent No.1 went back, the respondents were separated. When the respondent No.2 was aged about 8 months, he, all of sudden, fell ill but the applicant did not get him treated as a result of which the respondent No.1 came to her parents' home along- with respondent No.2 for getting him treated and from then, the respondent No.2 is residing in her maternal grandfather's house. In spite of all sorts of harassment, respondent No.2 stayed continuously in her matrimonial house but in the year 2003, a threat to her life was extended to her. Thereafter, she came back to her father's house and since then, she is residing at Gwalior. It was alleged that the respondent No.1 is unable to maintain herself whereas the respondent No.1 is a rich person, having 60 bighas of agricultural land, a tractor, a tube well and yearly agricultural income is about Rs.4 lakhs. Apart from that, the applicant is earning Rs.20,000/- per month from five buffaloes. Thus, Rs.5,000/- for each of the respondents were claimed by filing an application under Section 125 of CrPC. (4) The applicant filed his reply and denied the allegations. He alleged that the respondent No. 1 was not ready and willing to reside 3 CRR 332/2014 with him in the village and she was insisting that the applicant should also shift to Gwalior but as the applicant was not in a position to bear the expenses, therefore,he refused to shift to Gwalior. The respondent No.1 thereafter threatened that she would live at Gwalior and would get maintenance from him after the same is fixed by the trial Court. Without permission of the applicant she used to go to her parents home and whenever he requested her not to go to her parents' house, she used to extend threat that she would permanently shift to her father's house. On 26/12/2003, without informing anybody, respondent No.1 went to her father's house along-with respondent No.2. On 27/12/2003, when the applicant went to her father's house in order to take her back, then she and her family members misbehaved with the applicant and from then, onward the respondent No.1 is residing in her father's house without any reasonable reason. (5) The trial Court after recording the statements of the witnesses came to the conclusion that respondent No.1 is residing separately as she was harassed by the applicant and his family members. The applicant did not take any steps to take her back. Neither any report was not made nor any step in the society was taken. No application under Section 9 of the Hindu Marriage Act was filed prior to filing of application under Section 125 of CrPC. It is also clear that the applicant filed an application under Section 9 of the Hindu Marriage Act only after the application under Section 125 of CrPC was filed which clearly shows that the application under Section 9 of the Hindu Marriage Act was merely filed with an intention to create a defence, specifically when the respondent No.1 came back to her parent's house in the year 2003 and after six years she filed an application Section 125 of CrPC and for this six long years, the applicant did not take any step to take her back. Although the respondent No.1 had also not lodged any report with regard to harassment or beating given by the applicant but no universal principle can be laid down that until and unless a police report is made, the allegation of harassment cannot be accepted. In a given situation, different persons may react 4 CRR 332/2014 differently. If a lady does not lodge a report under the hope of improvement of their relations, then it cannot be said that the said conduct of the lady is unrealistic but on the contrary, it is an indicative of the fact that she was interested in residing in her matrimonial house. In the present case, for six long years the respondent No.1 kept quiet and only after she became unable to maintain herself, she filed an application under Section 125 of CrPC. In the facts and circumstances of the case, this Court is of the view that the trial Court did not commit any mistake in holding that the respondent No.1 is residing separately because of reasonable reasons. (6) So far as quantum of maintenance is concerned, the applicant (DW1) has admitted that apart from the land mentioned in Khasra Entry (Ex.D1), his father has an additional land but the documents have not been filed. He further admitted that his elder brother is residing at Philippines.
(7) Considering the totality of the facts and circumstances of the case, it is clear that the applicant belongs to financially well settled family. It is well established principle of law that the wife as well as the child are entitled for the same status which they would have otherwise enjoyed in the matrimonial house.
(8) 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 5 CRR 332/2014 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, 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 6 CRR 332/2014 him.
19. 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 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.'' (9) Considering the financial status of the parties, this Court is of the view that the trial Court did not commit any mistake in awarding the monthly maintenance amount @ Rs.4,000/- per month to the respondent No.1 and @ Rs.3,000/- per month to respondent No.2. Accordingly, the order dated 01/03/2013 passed by Additional Principal Judge, Family Court, Gwalior in Case No.298/2009, is hereby affirmed.
(10) This revision fails and is hereby dismissed.
(G. S. Ahluwalia) Judge MKB