HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(HON. SHRI JUSTICE BRIJ KISHORE DUBE)
MISC. Criminal Case No.7439 OF 2012
Anil Kumar Jain,
Versus
Smt. Shilpa Jain, W/o Anil Kumar
Jain,
Citation;2014(1)Crimes 254 (MP);2013(5)MPHT100
Dated;
(13/08/2013)
This petition under Section 482 of Code of Criminal
Procedure, 1973 (for short 'the Code') is preferred by the
petitioner for quashing the order dated 23.08.2012 passed
in
Criminal Revision No.168/2012 by the Additional Sessions Judge,
Ambah, District Morena affirming the order dated 23.06.2012
passed in M.J.C. No.95/2009 by the Judicial Magistrate First
Class and Gram Nayalaya, Ambah, District Morena whereby an
application under Section 125 of the Code filed by the respondent
herein/wife was allowed and the petitioner herein/husband was
directed to pay the maintenance to the tune of Rs.10,000/- per
month.
2.
Background facts may be summarized as under:-
(a)
The marriage of the parties was solemnized on
14.02.2006 as per Hindu rites and customs at Ambah,
District Morena, thereafter, they resided together for a short
span of about 12 months.
(b)
On 07.02.2008, the proceedings for grant of an
amount of Rs.17,000/- per month as maintenance were
initiated by the respondent herein, Smt. Shilpa Jain
(hereinafter referred to as 'wife') against the petitioner
herein, Anil Kumar Jain (hereinafter referred to as the
'husband'). According to her, right from inception of the
marital relationship, she had been subjected to cruelty and
harassment by her husband and her husbands' family
members in regard to demand of dowry. They also
compelled her to take divorce and insisted to sign on the
divorce papers. The elder brother of her husband who is
unmarried and an advocate expected from her to fulfill his
desire which she refused and due to which on his
instigation, she was subjected to harassment. Any how,
with the help of police on 18.02.2007, she was taken to her
parental home by her father. Her husband did not maintain
her. She has no independent source of income. She is
unable to maintain herself, however, the husband is having
hand-some income i.e., salary of Rs.18,000/- per month as
he is working in the Bank of India at Sihore, apart from that,
he is getting Rs.6,000/- per month as rent from the flat and
Rs.10,000/- per month from share market by doing
business.
(c)
In
turn,
the
husband
specifically
denied
the
allegations in regard to cruelty and dowry harassment.
Attention was also invited to the fact that no complaint
regarding alleged ill-treatment on account of dowry demand
was made at an earlier occasion. As per his version, the
wife
left matrimonial
home voluntarily and residing
separately at her parental house without any sufficient
reason. He tried several times to take her back to her
matrimonial house but she refused to come back. She is
well educated and is having sufficient source of income
while he is getting only salary of Rs.12,000/- per month
after deductions. He has to look after his mother, unmarried
brother and sisters, therefore, prayed that the application of
the wife for maintenance may be rejected.
(d)
The wife examined herself to prove her pleadings by
entering into the witness-box and produced the relevant
documents, however, neither the husband has been
examined himself nor produced any witness to prove his
pleadings.
(e)
Upon the critical appraisal of the entire evidence on
record, learned Magistrate found that the wife is unable to
maintain herself whereas the husband has sufficient means
to maintain his wife. The husband refused to pay the
maintenance, therefore, proceeded to award maintenance,
a monthly sum of Rs.10,000/- from the date of filing of the
application.
(f)
Being aggrieved thereof, the husband preferred
revision before the Revisional Court. The Revisional Court
vide the impugned order dated 23.08.2012 affirmed the
order of maintenance granted by the Judicial Magistrate
First Class, Ambah, District Morena, hence, this petition.
3.
Shri Rajesh Kumar Jain, Advocate who is elder brother of
the husband appearing on behalf of the petitioner herein
strenuously contended that the wife is not only residing separately
without any sufficient cause but she is also capable to maintain
herself. Learned counsel further submits that the learned Court
below wrongly determined that the husband neglects or refused
to pay the maintenance, as from the evidence it is clear that the
wife
left her matrimonial house voluntarily and went to her
parental house. She is well-educated and able to earn
and
maintain herself but the Court below erroneously determined that
she is unable to maintain herself. Regarding the earning of the
husband, the learned Court below wrongly determined without
legal proof that the husband is capable to maintain his wife. The
evidence led by the wife is without any material on record. The
learned Court below further wrongly held that the husband has
not proved his pleadings. Learned counsel placed reliance upon
the following decisions:-
(i)
(ii)
(iii)
(iv)
(v)
(vi)
4.
Mamta Jaiswal (Smt.) v. Rajesh Jaiswal, 2000
(2) Vidhi Bhasvar 76;
Dulichand v. Prahlad Singh, 1983 MPWN 259;
Deb Narayan Halder v. Smt. Anushree Halder,
AIR 2003 SC 3174;
R.P. Singh v. Narmada Prasad, 1998 (II) MPWN
95;
Shiv Kumar Yadav v. Smt. Santoshi Yadav,
2004 (2) MPHT 61 (CG);
Anil Kachwaha v. Smt. Sunita Kachwaha and
others, 2008 (4) MPHT 193.
In response, Shri Pradeep Katare, learned counsel for the
respondent argued in support of the impugned order and
submitted that the petition is not maintainable as the respondent
has not paid even a single pie in spite of the impugned orders
passed by the Courts below and order dated 28.09.2012 passed
by this Court.
5.
I have considered the rival contentions of the learned
counsel for the parties and perused the record.
6.
The main point for consideration is whether the Courts
below have committed any illegality in awarding maintenance at
the rate of Rs.10,000/- per month to the respondent/wife?
7.
As cautioned by the Hon'ble Apex Court in Rajathi v. C.
Ganesan, (1996) 6 SCC 326, it is not necessary to examine the
entire evidence threadbare in exercising the jurisdiction under
Section 482 of the Code in a case under Section 125 of the Code
as only a prima-facie view of the matter is taken and it would not
be desirable to enter into the minute details of the matrimonial
disputes between the parties. The relevant paras of the judgment
reads as under:-
“11. In the present case, the High Court minutely
examined the evidence and came to the conclusion that
the wife was living separately without any reasonable
cause and that she was able to maintain herself. All this
the High Court did in exercise of its powers under
Section 482 of the Code which powers are not a
substitute for a second revision under sub-section (3) of
Section 397 of the Code. The very fact that the inherent
powers conferred on the High Court are vast would mean
that these are circumscribed and could be invoked only
on certain set principles.
12.
It was not necessary for the High Court to
examine the whole evidence threadbare to exercise
jurisdiction under Section 482 of the Code. Rather in a
case under Section 125 of the Code the trial court is to
take a prima facie view of the matter and it is not
necessary for the Court to go into the matrimonial
disputes between the parties in detail. ....................”
8.
It is not in dispute that the marriage of the respondent was
solemnized with the petitioner on 14.02.2006 at Ambah, District
Morena. It is also not in dispute that the respondent/wife is living
separately with her husband w.e.f. 18.02.2007 at her parental
house at Ambah.
9.
To prove the case, wife examined herself before the Court.
According to her (A.W.1), she was married with Anil Kumar Jain
on 14.02.2006 and thereafter, she went to her in-laws house and
discharged the matrimonial obligations but she has been
maltreated and humiliated by her husband and husbands' family
members, not only for bringing insufficient dowry but also due to
demand of more dowry. She categorically stated the instances of
cruelty and harassment in her deposition. She further stated that
in the month of December her father came to her in-laws house to
take her, but she was not allowed to go with him. She was
compelled to take divorce. She was also pressurized to the effect
that unless and until she put her signature on the divorce papers,
she could not be allowed to go her parental house, thereafter, on
17.02.2007 her father again came to her in-laws house to take
her. The earlier episode was again repeated by her in-laws family
members but any how with the intervention of some relatives and
with the help of police on 18.02.2007, she was taken by her father
to her parental house and since then i.e., 18.02.2007 she is
residing at her parental house, Ambah, District Morena. It is
further stated by her that her husband is not maintaining her and
no attempts have been made to take/bring her back to her
matrimonial house by her husband. She is doing nothing and has
no means of income. She is unable to maintain herself. On the
contrary, her husband is working in Bank of India at Sehore and
he was getting salary Rs.18,000/- per month at the time of her
marriage. Nothing could be elicited in her cross-examination so
as to suggest that she was interested in obtaining the
maintenance on absolutely false grounds.
10.
In Rajathi (supra), the Hon'ble Apex Court ruled that the
statement of wife that she was unable to maintain herself would
be enough and it would be for the husband to prove otherwise. It
is further ruled that the words of “unable to maintain herself”
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 the desertion to survive somehow.
Section 125 of the Code is enacted on the premise that it is the
obligation of the husband to maintain his wife, children and
parents. It will, therefore, be for him to show that he has no
sufficient means to discharge his obligation and that he did not
neglect or refuse to maintain them or any one of them.
11.
The petitioner/husband neither examined himself nor
examined any witness to prove his case and discharge the
obligation.
12.
The learned Magistrate vide order dated 23.06.2012
directed the husband to pay the maintenance to his wife but the
same has not been paid. This Court vide order dated 28.09.2012
directed the petitioner/husband to pay Rs.7,000/- per month to the
respondent/wife but the petitioner has not complied with the order
till date. Failure on the part of the husband to pay maintenance in
view of the order of this Court amounts to 'negligence' as
contemplated under Section 125 of the Code.
13.
The wife is living separately since 18.02.2007 and the
husband neither made efforts to bring her back nor filed any
proceedings for restitution of conjugal rights, therefore, the
findings about husbands' negligence for refusal to maintain the
wife are seems to be proper.
14.
It is well settled that the wife is entitled to maintain a
standard of living, which is neither luxurious nor penurious and
also to lead a decent life yet, at par with the dignity of her
husband.
15.
In Anil Kachwaha (supra), the evidence showed that the
wife left her matrimonial home without any justifiable ground and
since then she was refusing to live with her husband without any
sufficient reason. In such circumstances, this Court held that wife
is not entitled to claim maintenance from her husband. In Mamta
Jaiswal (Smt.) (supra), this Court while considering the scope of
provisions of Section 24 of the Hindu Marriage Act observed that
it has been enacted for needy persons, benefit cannot be asked
by idle persons having capacity to earn. In Dulichand (supra), the
suit of plaintiff was decreed which was affirmed by the First
Appellate Court. In Second Appeal on questioning the judgment
and decree on the ground that the defendants' evidence has not
been taken into consideration by the Court below, this Court held
that extraneous evidence can not be looked into in the absence of
specific pleadings in that regard. In Deb Narayan Halder (supra),
the Apex Court held that when wife left matrimonial home without
any justifiable ground, then she would not be entitled to the grant
of maintenance. In R.P. Singh (supra), this Court held that the
burden lies on the prosecution to prove the ingredients of the
offence. Non cross-examination of witness by accused on the fact
that the sample had not been made homogeneous is immaterial.
In Shiv Kumar Yadav (supra), the husband of Santoshi Bai has
been able to discharge his primary burden, but wife is residing
separately without any sufficient reason and wife has not been
able to establish and prove her case, therefore, it has been held
that the finding of III Additional Sessions Judge that there is
sufficient reason for wife to live separately is perverse and
contrary to the evidence, which cannot be sustained. The facts
and nature of the present case are completely distinguishable and
therefore, the ratio of the aforesaid judgments has no application
to the facts of this case.
16.
Taking into consideration, all the material aspects of the
case, including the social background and standard of living of the
parties and rise in cost of living, the maintenance awarded by the
Court below is not unjustified.
17.
In the result, no illegality, infirmity, impropriety or perversity
is found in the impugned orders, hence, no interference in
exercise of power under Section 482 of the Code is called for.
This petition is devoid of merit and is, therefore, dismissed.
(Brij Kishore Dube)
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