Madhya Pradesh High Court
Lt. Col. Shailendra Singh Soam vs Smt. Pooja Soam (Aggrawal) on 28 August, 2018
Equivalent citations: AIRONLINE 2018 MP 696
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
Criminal Revision No.1398/2016
Lt. Col. Shailendra Singh Soam
Vs
Smt. Pooja Soam (Aggrawal)
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Ms. Amrit Ruprah, learned counsel for the applicant.
Shri Sharad Gupta, learned counsel for the
respondent.
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ORDER
(28.08.2018) This Criminal Revision has been filed against the order dated 20.05.2016 in MJC No.30/2016 by which learned trial Court awarded Rs.20,000/- per month as interim maintenance.
2. The respondent/applicant had filed an application under Section 125 of the Cr.P.C. alleging cruelty against the petitioner/non-applicant. She also alleged that the petitioner/non-applicant refused to procreate. So, she is entitled to Rs.65,000/- per month as maintenance. Respondent/applicant also filed an application for interim maintenance.
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3. Petitioner/non-applicant had filed reply of that application and contended that the petitioner/non- applicant is only getting Rs.34,500/- per month, in view of the great deductions being made on account of various heads mainly loans which were taken for various purposes. It is further contended that the learned Trial Judge, upon an incorrect appreciation of the legal and factual position held that the respondent/applicant is entitled to an interim maintenance of Rs.20,000/- per month.
4. According to the petitioner/non-applicant, learned trial Court held that though the respondent/applicant used to get a monthly income of Rs.18,000/- to 20,000/- only against rent. However, learned trial Court held that the respondent/applicant has to maintain her married daughter, and she is providing Rs.10,000/- per month by the income from rent. The daughter of the respondent/applicant from her first husband is married in a prosperous family. In any case, a major married well educated girl is not required to be maintained by her mother. It is not the responsibility of 3 Cr.R.No.1398/2016 the petitioner/non-applicant to maintain the daughter of the respondent/applicant from her first husband. So reduction of the income of the respondent/applicant from Rs.20,000/- per month to Rs.10,000/- per month only on account of maintenance of this married daughter of the respondent is an absolutely incorrect approach of law. Where a spouse who has a capacity of earning chooses to remain idle, she cannot be permitted to saddle the other spouse for her expenditure. In support of her contention she relied upon judgment in the case of Smt. Mamta Jaiswal Vs. Rajesh Jaiswal reported in 2000 (3) MPLJ 100 and stated that the Hon'ble Court observed that in the above-said judgment that "the respondent/wife a well qualified woman who ones upon a time was serving as a lecturer in collage cannot be equated with a gullible woman of village. A woman who is educated with a master's degree would not feel herself alone in travelling by a bus. She was not entitled to the travelling expenses of an adult attendant to go with her for attending the matrimonial Court at a place away from her place of residence".
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5. Petitioner/non-applicant further contended that the respondent/applicant has two independent houses, one plot worth Rs.2 crores, regular salary of at least Rs. 30,000/- per month plus a rental income of Rs. 20,000/- per month. In spite of that she has been awarded Rs.20,000/- per month as interim maintenance by the learned Family Court which is contrary to law. The finding of the learned Family Court that the petitioner/non-applicant might be earning Rs.90,000/- per month is based on conjectures and surmises. The correct fact as pleaded by the petitioner/non-applicant is that after the deductions, the petitioner/non-applicant is getting salary of Rs.34,500/- per month in hand. The petitioner/non-applicant has an income from salary at Rs.34,500/- only and he has already one unmarried minor daughter to maintain. Under these circumstances, saddling the petitioner/non-applicant with an additional liability of Rs.20,000/- per month can under no circumstances be justified in law. Beneficial provisions of Section 125 of the Cr.P.C. are meant to rescue of a lady who is 'unable to maintain' herself. Thus, the additional amount of 5 Cr.R.No.1398/2016 Rs.20,000/- per month has been awarded to her to maintain her luxury rather than the bare necessities of life. On these grounds, he prays to set-aside the impugned order.
6. The respondent/applicant opposes this petition filed by the petitioner/non-applicant and also filed an application bearing IA.No. 13856/2018 for dismissal of case for non-depositing of amount of interim maintenance. This matter is being heard finally with the consent of both the parties. Therefore, there is no need to entertain the aforesaid IA.No.13856/2018. He further submits that as per the salary slip of the petitioner/non- applicant of September 2015, the income of the petitioner/non-applicant was Rs.1,62,783/- per month.
7. The petitioner/non-applicant had also filed a petition for divorce being Civil Suit No.522-A/2012. In that civil suit, the respondent/applicant had filed an application under Section 24 of the Hindu Marriage Act. The same was allowed by the order dated 30.09.2014 and an amount of Rs.15,000/- was granted to the respondent/applicant towards interim maintenance, and at 6 Cr.R.No.1398/2016 that time the respondent/applicant was residing with the petitioner/non-applicant. The petitioner/non-applicant herein did not pay the said amount regularly, and the conduct of the petitioner/non-applicant before the trial Court is malafide from the very beginning, as he did not appear on the date fixed by the Court for the purpose of reconciliation proceedings and he has also not paid any amount granted towards interim maintenance.
8. The respondent/applicant has also filed an application under Section 125 (3) of the Cr.P.C. for recovery of the amount and the same is pending and in that case also the petitioner/non-applicant is not appearing and his counsel has also not accepted the notice of the case. Thus, the petitioner/non-applicant is chronic defaulter and at present his salary is more than Rs.2 lacs, but in spite of such huge salary he did not pay any amount to the respondent/applicant and he has filed this petition against the order dated 20.05.2016 and near about 28 months have passed and at present total arrears is Rs.5,60,000/- but the petitioner/non-applicant has not paid any amount. Therefore, in these circumstances, the present 7 Cr.R.No.1398/2016 case is liable to be dismissed for non-deposit of any amount of interim maintenance.
9. I perused the record and heard both the parties. It is not disputed that the respondent/applicant is wife of the petitioner/non-applicant. The respondent/applicant is living separately from her husband (petitioner/non-applicant). The petitioner/non-applicant has filed a case under Section 13 of the Hindu Marriage Act for divorce. The respondent/applicant has filed an application under Section 24 of the Hindu Marriage Act for interim maintenance and that petition was allowed by the learned trial Court, but the petitioner/non-applicant did not pay any amount (Single Pie) to the respondent/applicant. After that the petition of divorce was dismissed and the respondent/applicant had filed an application under Section 125 of the Cr.P.C. for grant of maintenance and also filed an application for interim maintenance and that petition was allowed by the learned Family Court whereby Rs.20,000/- per month was awarded as interim maintenance but the petitioner/non- 8 Cr.R.No.1398/2016 applicant did not pay any amount (Single Pie) to the respondent/applicant.
10. According to the petitioner/non-applicant, the respondent/applicant has sufficient earning to maintain herself. There is no oral and documentary evidence regarding her earning, which basis it can be held that the respondent/applicant is working lady and she is in service or working in any institution. So it is clear that the respondent/applicant-wife is not earning any money from her business or service. It is not disputed that the respondent/applicant-wife has two houses, some plots but main question is that how much is the respondent/applicant-wife earning from these properties at this juncture. The respondent/applicant admitted in her evidence that she gets Rs.18 to 20 thousand per month as rent from her house but she also clarified that when the tenant lives in that house, then she gets Rs. 18 to 20 thousand per month as rent from her house but when the house is vacated then she does not get any money from her house. Apart from that, the house is old, so some money is expended to maintain the house. She also 9 Cr.R.No.1398/2016 admitted that her daughter was married but her daughter and her grandson are studying. So, in these circumstances, observation of learned trial Court that the respondent/applicant is receiving Rs.10,000/- per month, as income from rent is proper.
11. It is not disputed that the petitioner/non- applicant is a Lt. Col, and he is getting Rs.94,439/- per month in hand. Although, the petitioner/non-applicant argued on this point that he is getting Rs.34,500/- per month in hand, but this fact is not true.
12. The trial Court has given this finding that the petitioner/non-applicant is getting Rs.94,439/- per month in hand. In these circumstances, the respondent/applicant is entitled to get maintenance from her husband (petitioner/non-applicant), although she has some means of earning.
13. The Hon'ble Apex Court in the case of Chturbhuj Vs. Sita Bai reported in I.L.R. [2008] M.P., 193 (SC) has held as under :-
" 5. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide 10 Cr.R.No.1398/2016 support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. 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. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). 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 and Ors. (2005 (2) Supreme 503).
6. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means.
7. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself".
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14. In the case of Smt. Ratna Vs. Durga Prasad reported in 2006 (4) M.P.H.T. 381 this Hon'ble Court has held as under :-
"11. On due consideration of the facts and circumstances of the case and the material on record I am of the opinion that the impugned order directing reduction of the maintenance allowance from Rs.2,000/- per month to Rs.500/- per month deserves to be modified. Since the amount for maintenance should be awarded keeping in mind the status of the family and the needs of the wife, it must be a proper amount. The status of wife is to be judged from the status of her husband and not from her maternal relations. The rate of allowance cannot be fixed on the hypothetical basis i.e., capacity to earn money. Capacity to earn money may be taken into consideration in coming to a conclusion with regard to the means of the husband. In the present case, it is on record that the petitioner is living in her own house and owns agricultural land also. In such circumstances, though the amount of maintenance allowances deserves to be enhanced, but not too much. In my opinion, the rate of allowances deserves to be enhanced to Rs.900/- per month".
15. This Hon'ble Court in the case of Anita Sharma and another Vs. Ramjilal Sharma reported in 2006 (3) M.P.L.J. page 96 has held as under :-
"5. The learned counsel has also placed reliance on an another judgment reported in the matter of Johnson M. Joseph Vs. Anita Johnson and another, 2001 (2) MPLJ 675. In this case His Lordship has held that the word 'maintain' or 'maintenance' should be interpreted in such a way that the applicant gets an amount to meet the necessities of life. It is well known that food, clothing and shelter are the basic necessities of a person. A working woman is required to spend more than a house-wife as she has to work in the office and also to keep her household. She is 12 Cr.R.No.1398/2016 entitled to lead a decent life commensurate with the status of her husband and the family. Her petition cannot be thrown out simply on the ground that she is earning something. Her income should be sufficient to meet her necessities. Her income can be taken into consideration for determining the quantum of maintenance to be allowed to her. The expression 'unable to maintain herself' does not mean that the wife should be absolutely destitute before she can apply for maintenance under section 125 of the Code".
16. Learned counsel for the petitioner/non- applicant has placed reliance in Smt. Mamta Jaiswal (Supra), in this judgment facts and circumstance of case are different from the present case, whereas in the present case the petitioner/non-applicant was not come forward in the negotiation proceedings conducted by the learned Family Court. Hence, such circumstances the said reliance has not supported the case of present petitioner/non- applicant.
17. In view of the aforesaid, I find that there is no illegality, irregularity or perversity in the order passed by the trial Court in granting maintenance to the respondent/applicant. Consequently, this revision petition is dismissed.
(Rajendra Kumar Srivastava) Judge 13 Cr.R.No.1398/2016 sp