Madhya Pradesh High Court
Abhinava Vishwkarma vs Smt. Varsha Vishwakarma on 23 March, 2015
1 Cr. R. No.1937 of 2013
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
CRIMINAL REVISION No. 1937 of 2013
APPLICANT: Abhinav Vishwakarma
Versus
RESPONDENTS: Smt. Varsha Vishwakarma and Anr.
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Shri Pranay Verma, Advocate for the applicant. Shri Nilesh Kotecha, Advocate for the respondents.
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(ORDER) 23.03.2015 This revision under Section 19(4) of the Family Court Act, 1984 has been filed by the applicant being aggrieved order dated 19.07.2013, passed in MJC No. 76/2012, by learned First Additional Principal Judge, Family Court, Jabalpur, whereby the Family Court allowing the application filed by the respondents passed the order of maintenance to the tune of Rs.7,000/- per month to the respondent No.1/wife and Rs.4,000/- per month to the respondent No.2/son.
02. Brief facts of the case are that on 29.11.2005 the marriage was solemnized between the applicant and respondent No.1 at Nagpur according to Hindu customs. Out of this wedlock, respondent No.2 son was born on 26.11.2007. After marriage, the applicant and his parents were maltreated the respondent No.1and also demanded money from her parents and brother. On 22.01.2012 the father of the applicant harassed the respondent 2 Cr. R. No.1937 of 2013 No.1 for dowry demand and also beaten her and ousted her from the matrimonial house and threatened to kill her. Since 01.02.2012, respondents are living at paternal house of the respondent No.1. The applicant is a Software Engineer and earns Rs. 50,000/- to 60,000/- per month and also deals in property.
03. The applicant entered his appearance by filing reply and denied the averments of the respondents and stated that the respondents have filed the said application for maintenance on false and concocted grounds. It is also mentioned that the respondent No.1 used to go her parental house without giving information to the applicant or his family members. On 22.01.2012 she went on her own to her parental house and never turned back.
04. Learned Family Court allowing the application and granted the maintenance of Rs.7,000/- per month to the respondent No.1 and Rs.4,000/- per month to the respondent No.2. Being aggrieved, the applicant is before this Court for setting aside the order passed by learned Family Court.
05. Shri Pranay Verma, learned counsel for the applicant has submitted that the learned Family Court acted illegally and committed material irregularity allowing the application filed by the respondents. Learned Family Court erred in holding that the respondent No.1 was physically and mentally ill-treated and tortured by the applicant and reports Ex.P-10 to P-11 were made prior to institution of the maintenance proceedings. Learned Family Court failed to observe this fact that the respondent No.1 is living with her parents out of her own will without any reasonable or sufficient 3 Cr. R. No.1937 of 2013 cause, withdrawal of application filed under Section 9 of Hindu Marriage Act is also ignored. Finally, it is submitted that without proof of income of the applicant learned Family Court awarded amount for maintenance which is based on conjecture and surmises.
06. Shri Nilesh Kotecha, learned counsel for the respondents has vehemently opposed the application contending that the applicant ill-treated and tortured the respondent No.1, documentary evidence particularly reports Ex.P-10 and P-11 goes to show sufficient cause to live separately from the applicant. The applicant is having source of income.
07. Considering the rival submissions made by learned counsel for the parties and after perusal of record of the Family Court as well as impugned order, the Court is of the opinion that this petition deserves to be rejected.
08. This is admitted position that the respondent No.1 is the legally wedded wife of the applicant and respondent No.2 is the son of this couple.
09. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by the Apex Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950.
10. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for 4 Cr. R. No.1937 of 2013 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 by the Apex Court in the case of Savitaben Somabhai Bhatiya vs. State of Gujarat and Ors. reported in [2005(2) SCC 503].
11. Testimony of respondent No.1 Smt. Varsha (PW/1) and her father Madhav Vishwakarma (PW/2) fully supported the case of the applicant, while applicant Abhinav Vishwakarma (DW/1) rebutted all the allegations made against him to show justification of living separately by the respondent No.1. But the documents Ex.P-7 to P-12, exhibited during the statement of Smt. Varsha (PW/1) goes to show disputes between the parties including report lodged by Smt. Varsha under the provisions of Section 498 of IPC against her husband Abhinav (DW/1).
12. Applicant Abhinav (DW/1) admitted that he is completed his degree of Mining Engineering and also completed Diploma of Advance Computing and also accepted at one point to time he was getting salary between 25,000/- to 30,000/-. In the light of these admissions can not be accepted that the applicant is unemployed and having no source of income.
13. It is the obligation of the husband to maintain wife, father to maintain children and son to maintain parents. It will, therefore, be for applicant to show that he has no sufficient means to discharge his obligation: Rajathi vs. C. Ganesan (1999) 6 SCC 326. Means does not signify only visible means, such as real property or definite 5 Cr. R. No.1937 of 2013 employment: Basanta vs. Sarat 1982 CrLJ 485. An able-bodied person has sufficient means: Kandaswami vs. Angammal AIR 1960 Mad 348: 1960 CrLJ 1098.
14. Learned Judge of the Family Court in the facts of the present case has come to a right conclusion that the Family Court rightly awarded the maintenance amount to the respondents. The impugned order passed by the learned Family Court's Judge is legal, proper and correct and calls for no interference, therefore, this petition is devoid of any merit hence is disallowed.
15. A copy of this order be sent to the Court below with the relevant record.
(Subhash Kakade) Judge ak.