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Madhya Pradesh High Court · body

2008 DIGILAW 976 (MP)

RANJEET KHANUJA v. HARMEET KAUR

2008-08-05

N.K.MODY

body2008
Judgment ( 1. ) BEING aggrieved by the order dated 02-08-07, passed by First Additional, family Court, Indore in case No. 56/07, whereby the application filed by the respondent under Section 125 of the Cr. P. C. for grant of maintenance was allowed and a sum of Rs. 6,000/- per month was awarded as maintenance, present revision petition has been filed. ( 2. ) SHORT facts of the case are that the respondent who is the wife of petitioner filed a petition under Section 125 of the Cr. P. C. for grant of maintenance on 27-03-04 alleging that marriage took place with the petitioner on 19-11-00 out of the wedlock respondent delivered a baby Prachi. It was alleged that respondent is not in a position to maintain herself and her daughter, while the petitioner is in the business and whose earning is more than of rs. 10,00,000/- per annum. It was prayed that monthly maintenance be awarded. The petition was contested by the petitioner. After hearing of the parties learned Court below allowed the application and awarded a sum of Rs. 3,000/-per month to respondent and Rs. 3,000/- per month to her daughter Prachi as maintenance against which the present petition has been filed. ( 3. ) SHRI Amit Agrawal, learned Counsel for the petitioner submits that the amount awarded is on higher side. It is submitted that Prachi is the daughter of respondent who is studying in Class-II. It is submitted that while fixing the maintenance, learned Court has to keep in mind the income of the petitioner as well. It is submitted that petitioner is in business of "sona lubricants". It is submitted that as per the assessment order of Commercial Tax Department, the petitioner has sustained losses in business. It is submitted that in the facts and circumstances of the case, the amount awarded is on higher side which deserves to be reduced. ( 4. ) RELIANCE was placed on a decision of the Honble Apex Court in the matter of Chaturbhuja Vs. Sitabai, 2007 (8) Supreme 525 wherein the Honble apex Court has observed as under :-The object of the maintenance proceedings is not to punish for his past neglect, but to prevent vagrancy by compelling those who can provide support themselves and who have a moral claim to support. Sitabai, 2007 (8) Supreme 525 wherein the Honble apex Court has observed as under :-The object of the maintenance proceedings is not to punish for his past neglect, but to prevent vagrancy by compelling those who can provide 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 chancier Kaushai Vs. 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 Vs. State of Gujarat and others, 2005 (2)Supreme 503 . 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. 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. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. 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. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is sufficient she can claim maintenance under Section 125 Cr. P. C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Vs. Kamla Devi, AIR 1975 SC 83 , it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself does not mean that the wife must be absolutely destitute before she can apply for maintenance under section 125, Cr. PC. In the instant case the Trial Court, the Revisional Court and the high Court have analysed the evidence and held that the respondent wife was unable to maintain herself. The conclusions are essentially factual and they are not perverse. That being so there is no scope for interference in this appeal which is dismissed. ( 5. ) IT is submitted that in the facts and circumstances of the case, the amount awarded be reduced. ( 6. ) SHRI Brajesh Pandiya, learned Counsel for the respondent submits that the conduct of the petitioner has to be kept in mind. Petitioner has tried to hide the business from the learned Court below. It is submitted that apart from this petitioner is earning more than Rs. 10,00,000/- per year which has come in the findings of the learned Court below. It is submitted that keeping in view the growing needs of the daughter of the respondent the amount awarded is just and proper which requires no interference. It is also submitted that petitioner is not paying maintenance regularly and is in default. 10,00,000/- per year which has come in the findings of the learned Court below. It is submitted that keeping in view the growing needs of the daughter of the respondent the amount awarded is just and proper which requires no interference. It is also submitted that petitioner is not paying maintenance regularly and is in default. Learned Counsel submits that some arrangement be made to insure the maintenance in such a manner so that respondent should get the amount of maintenance regularly without running from pillar to post. ( 7. ) AFTER taking into consideration all the facts and circumstances of the case, this Court is of the view that the petitioner is belonging to trading family and both the parties are living at Indore where living cost is on higher side. Petitioner has tried to show that he has suffered losses by filing some documents of Commercial Tax Department, but has not filed income Tax returns which could have been the best evidence to assess the income of the petitioner. Best evidence in this regard was withheld by the petitioner for the best reasons known to the petitioner. ( 8. ) IN the facts and circumstances of the case and keeping in view the growing needs of the daughter of respondent this Court is of the view that no illegality has been committed by the learned Court below in awarding the maintenance @ Rs. 6,000/- per month. To avoid inconvenience and to insure prompt payment to the respondent it is further directed that respondent shall open a bank account, of which intimation shall be given by the respondent to the petitioner through Counsel, where the monthly maintenance shall be deposited by the petitioner regularly without delay from where the respondent can withdraw the amount as per her needs. In case of default the petitioner shall be further liable to pay interest @ 12% per annum. ( 9. ) AT this stage Shri Amit Agrawal learned Counsel for the petitioner submits that since the petition has been filed by the petitioner, therefore, at the most, revision petition can be dismissed but no further direction can be issued in favour of respondent. ( 10. ) IN this regard, it is made clear that no further relief is granted to the respondent. ( 10. ) IN this regard, it is made clear that no further relief is granted to the respondent. Only the prompt payment of maintenance already awarded by the learned Court below is insured keeping in view the past defaults on the part of petitioner which has compelled the respondent for begging for food, cloth and shelter. The provisions relating to maintenance are benevolent provisions and is measure of social justice and specially enacted to protect women and children, therefore, this Court is competent to issue all the necessary directions, which are necessary in the interest of justice. If the petitioner is prompt in payment of maintenance as directed, then the petitioner is not required to bother for the condition of imposing the interest. ( 11. ) IN view of this the petition filed by petitioner stands disposed of with the aforesaid directions.