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Madhya Pradesh High Court

Touseef Raashid Makroo vs Baby Madeeha on 1 August, 2018

                                 1                 Cri.Revision No.2944/2017

 HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS. VANDANA KASREKAR


                  Criminal Revision No.2944/2017


                        Touseef Raashid Makroo

                                     Vs.

                              Baby Madeeha

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       Shri D.K. Gangrade, learned counsel for the applicant.
       Shri Ashish Shroti, learned counsel for the respondent.
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                                ORDER

(01.08.2018)

1. The applicant has filed this revision challenging the order dated 08.09.2017 passed by I Additional Judge, Family Court, Bhopal, in MJC No.522/2015, thereby allowing the application preferred by the respondent under Section 125 of the Code of Criminal Procedure.

2. The respondent is minor and has filed this application through her mother. The marriage of the applicant and mother of the respondent, namely, Nikhat Noor Qureshi, was solemnized at Bhopal on 5.1.2013. Thereafter, they were living at Delhi. The respondent was born on 12.10.2013, out of the said wedlock. The applicant was very happy on the birth of the respondent. He took all the care and caution for better and proper uplifting of the respondent in all possible manner. Thereafter, the applicant due to the eye sight problem was asked to resign from his job and 2 Cri.Revision No.2944/2017 eventually, the applicant had resigned from his job at Vatika Group, Delhi, in January, 2015. Because of his sudden loss of the job, the wife of the applicant and mother of the respondent were not at all happy and she left company of the applicant. Only for the reason that he had no good job, she went to stay with her parents at Bhopal.

3. The mother of the respondent thereafter filed a Divorce Application on 18.8.2015, narrating the false fact about the harassment and dowry demand by the applicant. Later on, she has also filed an application under Section 125 of the Code of Criminal Procedure for grnt of maintenance to the tune of Rs.35,000/- (Rupees Thirty Five Thousand) per month. Upon receiving notice from the Family Court, the applicant submitted a detailed reply and denied all such allegations made against him. He stated that he never harassed his wife for demand of dowry. On the contrary, he submitted that his wife was never satisfied with the living of the applicant. She always expected more. He further submitted that he always took care of his child. He further submitted that he is out of job after resignation from Vatika Group and he denied that he is earning Rs. 2,00,000/- (Rupees Two Lacs) per month. The Family Court after considering the stattements of both the parties has passed the order dated 8.9.2017, thereby awarding a maintenance of Rs.15,000/- (Rupees Fifteen Thousand) to the respondent. Being aggrieved by that order, the applicant has filed this revision.

4. The learned counsel for the applicant submits that the amount awarded by the Family Court is on higher side. He submits that the Family Court has failed to consider that the applicant has resigned from his job and at present, he has no 3 Cri.Revision No.2944/2017 source of income. He further submits that the mother of the respondent without any sufficient reason has left the matrimonial home and, therefore, she is not entitled to get the maintenance.

5. On the other hand, learned counsel for the respondent submits that the maintenance awarded by the Family Court is just & proper and is based on overall income of the applicant.

6. Heard learned counsel for the parties and perused the record.

7. The first question which requires to be decided is, whether the mother of respondent is residing separately from the applicant without any sufficient reason. Nikhat Noor (PW/1) in her examination in chief has stated that the applicant after two months of marriage started physically and mentally hasassing her for demand of dowry. She furthr stated that on 12.10.2013, she has given birth to the respondent. Her in-laws even after the birth of the daughter, have given physical harassment for demad of dowry and in December 2014, she was thrown away from her matrimonial house with her daughter. Thus, statement of Nikhat Noor (PW/1) was not challenged in the cross-examination. The father of the applicant in his statement has stated that at present the respondent is residing with her mothr. In cross-examination, he stated that number of times, attempts have been made by him for taking respondent-Baby Madeeha, but nobody come to Bhopal for taking respondent-Baby-Madeeha. On the basis of the said instance, the Court has found that the mother of the respondent has left the matrimonial home not on her own will, but she was compelled to leave the matrimonial home.

8. The second question, which requires to be considered is, whether the applicant has neglected to maintain the respondent and whether he possesses sufficient source of income. The mother of the respondent in her statement has stated that her daughter is only 22 months' old and for maintaining her, Rs.35,000/- is required for the purpose of her treatment, education and maintenance. So far as income of the applicant is concerned, she has stated that the applicant is a Senior Design Architect and is working in Vatika Group, Gudgaon, from where he is earning Rs.2,00,000/- (Rupees Two Lacs) per month. She further stated that at Delhi, he possesses one flat at Gudgaon and one flat at Dwarka Sector . He has made certain investments at Gudgaon and Kashmir. He is having two ancestral properties at Shrinagar. Thus, by taking overall, his income is Rs.35,000/- per month. However, the mother of the respondent has not produced any document to show the income of the applicant. The applicant in his statement has taken a defence about his eyes. He submits that he is suffering from colour blindness defect in his eyes and therefore, due to the said defect, he could not get the job in a good Company. He admits that he is working in Vatika Group at Gudgaon and his package was Rs. 1 Lakh per month and after deduction, he was getting Rs.70,000/- (Rupees Seventy Thousand) per month. In the year 2014, he was compelled to give the resignation. Therefore, has given resignation and since then he has no source of income. So far as giving resignation due to colour blindness of his eyes is concerned, the applicant has not produced the resignation letter before this Court. But in the statement before the Family Court, he has not stated that in the resignation, he has disclosed about his defect in the eyes. Due to colour blindness, it cannot be said that the working capacity of the applicant was reduced. The father of the applicant has 5 Cri.Revision No.2944/2017 produced the document relating to the unfitness of the applicant as Ex.P/10 before this Court. The said document has not been issued by the Competent Authority before the Court. Therefore, mere document exhibition of the said document cannot be said to be proved and therefore, on the basis of the said document, if the applicant is found to be unfit, then even looking to his nature of work, it can be said that his working capacity has not been affected.

9. The applicant in his statement has not denied that he was working on the post of Architect, but he admitted the fact that he was working in the Vatika Group upto February, 2015. The work of Architect is to prepare the map for construction and its sketch map etc. Which is not affected by the colour blindness. He has not produced any medical certificate of the Specialist.

10. The applicant had relied on Ex.D/10 to show that he was medically unfit from 23.1.2013 due to colour blindness, but in the cross-examination, the applicant has admitted that he worked in the Vatika Group till 2015. Thus, if he is unfit from 2013, then how he worked upto 2015. The applicant has also stated that the mother of the respondent is a highly educated lady and therefore, she is not entitled to get the maintenance.

11. The Apex Court in the case of Chaturbhuj Vs. Sita Bai (AIR 2008 SC 530), has held that even though the wife is earning some income, for that reason she cannot be denied the maintenance. Thus, on the basis of the evidence, the Family Court has found that on the basis of sufficient evidence on record, the income of the applicant is assessed to be Rs.70,000/- (Rupees Seventy Thousand) per month, because the applicant in his cross-

examination, has admitted that he was earning Rs.1 Lakh per month when he was serving with the Vatika Group. The respondent is at present four years of age and now her school expenses and other expenses have been increased, therefore, the maintenance awarded by the Family Court is just and proper, which does not call for any interference.

12. Accordingly, the revision is dismissed. No order as to costs.

(MISS VANDANA KASREKAR) Digitally signed by ASHWANI JUDGE PRAJAPATI Date: 2018.08.02 10:46:46 +05'30' A.Praj.