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Madhya Pradesh High Court · body

2003 DIGILAW 194 (MP)

Yashwant Shilpkar v. Samta Shilpkar

2003-01-29

NARAIN SINGH AZAD

body2003
JUDGMENT By order dated 19.6.2001 passed in respondents maintenance application filed u/s 125 CrPC and registered as M.J.C. No. 50/01, JMFC Jabalpur directed the petitioner to pay Rs. 1,000/- p.m. to respondent-l and Rs. 1,500/- p.m. to respondent-2 as maintenance. Both the parties challenged the aforesaid order in Cr. R.No. 281/01 and 282/02 respectively which are disposed of by IV A.S.J. Jabalpur by a common order dated 30.1.2002. The petitioner sought quashment of order dated, 19.6.2001 passed by JMFC in MJC No. 50/01 whereas the respondents filed the revision seeking enhancement in the rate of maintenance. On perusal of record of MJC 50/01 it is noted that the maintenance petition was filed on 11.2.1994 which for the first time stood disposed of on 16.11.1999 in favour of respondcnt-2 Suvigya only. While holding respondent-I not entitled for maintenance J.M.F.E. directed the petitioner to pay an amount of Rs. 500/- as maintenance to respondent-2 since the date of filing the petition. The respondents challenged the aforesaid order in Cr. R. No. 119/02, on 21.8.2000 learned IV A.S.J. remanded the case with following directions -(1) The learned magistrate shall call for salary details of the respondent for the last financial year from department in the alternative respondent may file income tax returns of financial year of 1999-2000 to prove his actual salary. (2) The learned magistrate shall also call details of scholarship being paid to the petitioner No.1 from her officer head, in the alternative the petitioner no. 1 can herself file certificate from her officer head regarding scholarship and remuneration being paid to her. (3) The learned magistrate shall afford a chance to both the parties for further cross-examination of the parties on the point of income and dependency only. (4) The learned magistrate shall see that interim maintenance as already. has been due before passing of impugned order on 16.11.1999 is paid to the petitioner within reasonable time. (5) The learned magistrate shall decide case within 5 months from the date of this order. (6) Both the parties are directed to appear before the learned magistrate on 26.8.2000. On receipt of record of MJC No. 50/01. after order of remand, the JMFC again disposed of MJC No. 50/01 on merits, by order dated 19.6.2001 wherein the petitioner is directed to pay Rs. 1,000/- p.m. and Rs. (6) Both the parties are directed to appear before the learned magistrate on 26.8.2000. On receipt of record of MJC No. 50/01. after order of remand, the JMFC again disposed of MJC No. 50/01 on merits, by order dated 19.6.2001 wherein the petitioner is directed to pay Rs. 1,000/- p.m. and Rs. 1,500/- p.m. as maintenance to respondents 1 and 2 respectively on the basis of objective and exhaustive assessment of evidence of both the parties. The learned JMFC recorded affirmative findings that the respondents have no source of income of their own whereas the petitioner being capable of maintaining the respondents, has neglected to maintain them and thus respondents are entitled to receive maintenance from the petitioner. On the basis of appreciation of evidence, on the point of income of the petitioner and so also the expenses to be borne on the education of respondent-2, learned JMFC fixed the quantum. Then revisional Court has also found to have appreciated and assessed the evidence of both the parties while confirming the findings of lower Court. While not resisting the grant of maintenance to respondent-2 it is submitted on behalf of the petitioner that by mutual agreement marriage between the petitioner and respondent-l stood annulled on 5.11-1997 in C.S. No. 23-A/97, therefore, she is not entitled for maintenance. But relying on Bhgwandutt v. Kamadevi; AIR 1975 SC 83 , it is dictated by their Lordships of the Supreme Court in Savitri v. Gavind. reported in 1986 CrLJ 48 that even if the earlier decree for restitution of conjugal rights is not complied with by the wife, a divorced wife has right to claim maintenance from the husband. By divorce the wife gets a new status as divorced wife and as such she is under no obligation to live under the roof of the husband. Thus, when a husband refuses to pay maintenance to the divorced wife, unable to maintain herself, she is entitled to claim maintenance u/s 125 CrPC. Since I do not find any perversity in the findings recorded by J.M.F.C. on 19.6.2001, for granting maintenance to the respondents, this petition does not merit and is accordingly rejected at the stage of motion hearing.