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2012 DIGILAW 211 (HP)

Manisha Sharma v. Prem Chand Sharma

2012-04-20

RAJIV SHARMA

body2012
JUDGEMENT Justice Rajiv Sharma, J.:This petition is directed against the order dated 7.9.2007 passed by learned Additional Sessions Jude, Sirmour District at Nahan in Case No.3-N/ 10 of 2007. 2. Material facts necessary for adjudication of this petition are that the petitioner filed a petition under Section 125 of the Code of Criminal on her behalf and also on behalf of her two sons, namely, Mohit Sharma and Ankit Sharma in the Court of Chief Judicial Magistrate, Sirmour at Nahan against the respondent. According to averments contained in the petition, the marriage was solemnized between the parties according to Hindu rites, rituals and customs in December, 1996 at Nahan. 3. The relations between the parties remained cordial for some time. Thereafter, the respondent started picking up quarrels with the petitioner. He also demanded dowry from the petitioner. Harassment increased after the birth of second son. The matter was taken before the local Panchayat, where the matter was compromised between the parties on 8.9.2005. Mohit Sharma and Ankit Sharma are school going children. The respondent is not paying the fees of his sons. The petitioner as well as her two sons are totally dependent upon the income of the respondent. She is also suffering from Asthma and undergoing treatment. The total expenditure required for the study of the children is ‘ 3000/- per month and the monthly expenditure of the petitioner is about ! 3500/-. The respondent is stated to be a Government servant drawing the salary at the rate of ! 15,000/- per month. He has also earnings of rupees one lakh per year from other sources. 4. The petition was contested by the respondent. The marriage between the parties was admitted. It is also admitted that two children were born out of their wedlock. The petitioner and respondent resided at H.P.S.E.B., Giri Nagar, District Sirmour upto 13.11.2005 peacefully. The petitioner at the instance of her father left the house of respondent without any reasonable cause. She also registered a criminal case against the respondent on 15.11.2005. He claimed that he has paid the fees of minor children. He has admitted them in a private school at Nahan, but the petitioner has not permitted the respondent to see his children. 5.The learned Chief Judicial Magistrate, Nahan allowed the petition on 20.12.2006 and held the petitioner entitled to maintenance allowance of ! 1,200/- per month. He claimed that he has paid the fees of minor children. He has admitted them in a private school at Nahan, but the petitioner has not permitted the respondent to see his children. 5.The learned Chief Judicial Magistrate, Nahan allowed the petition on 20.12.2006 and held the petitioner entitled to maintenance allowance of ! 1,200/- per month. The two children were also held entitled to maintenance at the rate of ! 1,000/- each per month from the date of filing of the petition. The children were held entitled to maintenance allowance till they attain the age of majority. 6. The respondent preferred a revision petition against the order dated 20.12.2006 passed by learned Chief Judicial Magistrate, Nahan before the learned Additional Sessions Judge, Sirmour at Nahan. He partly allowed the same on 7.9.2007 to the extent that the order of grant of maintenance allowance qua the petitioner was set aside. However, order of the learned trial Court awarding maintenance allowance to the two children was up-held. It is in these circumstances that the present petition has been filed by the petitioner-wife. 7. Mr. Vinod Gupta, learned counsel for the petitioner has supported the order passed by learned Chief Judicial Magistrate, Nahan. According to him, the learned Additional Sessions Judge, Sirmour at Nahan has come to the wrong conclusion that the petitioner was not entitled to maintenance allowance. 8. Ms. Devyani Sharma, learned counsel for the respondent has supported the order dated 7.9.2007 passed by the learned Additional Sessions Judge. 9. I have heard learned counsel for the parties and gone through the pleadings carefully. 10. It is not in dispute that the marriage between the parties was solemnized as per Hindu rites and customs in the month of December, 1996 and two children were born out of the wedlock, namely, Mohit Sharma and Ankit Sharma. Both of them are school going children. Respondent is engaged as Electrician in H.P.S.E.B. According to the petitioner, his salary is !15,000/- per month and he is also earning about rupees one lakh from other sources. 11. Petitioner has appeared as PW- 1. She has disclosed that after the birth of second child, respondent started beating and torturing her. He also demands dowry from her. The matter was lodged with local Panchayat, where the matter was compromised between the parties on 8.9.2005. He has undertaken to behave decently with the petitioner. 11. Petitioner has appeared as PW- 1. She has disclosed that after the birth of second child, respondent started beating and torturing her. He also demands dowry from her. The matter was lodged with local Panchayat, where the matter was compromised between the parties on 8.9.2005. He has undertaken to behave decently with the petitioner. However, she was given beatings by the respondent on 13.11.2005. She was driven out of the matrimonial house. She lodged a F.I.R. under Sections 498-A, 323 and 506 of Indian Penal Code against the respondent in Police Station, Nahan. According to her, the income of respondent was ! 15,000/- per month. 12.Mr. Ankur Sharma is PW-2. He is brother of the petitioner. According to him, the marriage of the parties was solemnized in the year 1996. Respondent gave beatings to the petitioner on 13.11.2005 and drove her out from his house. The petitioner took her children to Nahan and thereafter she is staying with him. Respondent used to demand dowry from her. According to him, the income of respondent was ! 15,000-/ per month. He has denied the suggestion that the respondent was earning ! 7,000/- per month. 13. Respondent has appeared as RW- 1. He testified that the petitioner is his wife. He has admitted that the children were admitted in Guru Nanak Mission Public School at Paonta Sahib. He used to bear the expenses of the education of his children. He also used to maintain the children. According to him, the petitioner has left the matrimonial home on 13.11.2005 without any reasonable cause. She has come to her mother’s house at Nahan alongwith her entire luggage. Thereafter they also registered a case against him. He has placed on record the receipts of admission of his children Ex.RW-1/C and Ex.RW-1/D. He has also placed on record the receipts of insurance policies of his children Ex.RW-1/A and Ex.RW-1/B. He deposed that he earns about ! 7,000/- per month. He is paying ! 8,000/- per annum as premium of insurance policies of his minor sons. He has further stated that he also pays the instalments of R.D. in the names of minor children. He has further stated that the petitioner has taken the two children to Nahan and admitted them in school at Nahan. 14. Deep Chand, RW-2 has supported the version of RW- 1. He has further stated that he also pays the instalments of R.D. in the names of minor children. He has further stated that the petitioner has taken the two children to Nahan and admitted them in school at Nahan. 14. Deep Chand, RW-2 has supported the version of RW- 1. According to him, the respondent used to tell him that his in-laws generally interfere in his matrimonial life and thus, the relations between them have become strained. He has further stated that the respondent never gave beatings to the petitioner. Neeraj Kumar, RW-3 has testified that the petitioner has never complained to him regarding the beatings or maltreatment by the respondent. 15. It is evident from the facts, enumerated hereinabove, that the marriage between the parties was solemnized in the year 1996. The relations between them were cordial for some time. However, the same became strained. The petitioner was turned out of the matrimonial home on 13.11.2005. She also filed a FI.R. against the respondent under Sections 498-A, 323 and 506 of Indian Penal Code on 15.11.2005. The income of respondent being Electrician in H.P.S.E.B. is !15,000/-. According to the petitioner, she has been given beatings by the respondent. Her version has been supported by her brother, PW-2 Ankur Sharma. The respondent has denied that he has been giving beatings to his wife. According to him, he was maintaining the petitioner and the children properly. He has got the children admitted in a Private School at Paonta Sahib. The version of the respondent has been supported by RW-2, Deep Chand. Neeraj Kumar (RW-3) though claims himself to be a relation to the parties, but the relationship is not disclosed by him. It has also come in the evidence that the matter was placed before the local Panchayat and a compromise was arrived at between the parties on 8.9.2005 and despite that the relations have not improved. The statement made by petitioner’s brother, Mr. Ankur Sharma could not be brushed aside merely on the ground that he happens to be brother of the petitioner. His statement inspires confidence and he has supported the version of the petitioner. In fact, the brother has brought the sister back to Nahan at 10.00 p.m. on 13.11.2005. The learned Additional Sessions Judge has also erred in law by giving undue importance to the fact that the compromise was not placed on record. His statement inspires confidence and he has supported the version of the petitioner. In fact, the brother has brought the sister back to Nahan at 10.00 p.m. on 13.11.2005. The learned Additional Sessions Judge has also erred in law by giving undue importance to the fact that the compromise was not placed on record. It was not necessary for the petitioner to examine any member of the Gram Panchayat to prove the compromise. This plea has been taken by the petitioner only to substantiate that after the relations have become strained, the matter was reported to the Panchayat. It was not necessary for the petitioner to examine any neighbour from the locality where she was residing to prove the factum of maltreatment meted out to her by the respondent. She lodged the F.I.R. when the circumstances became unbearable. There is no evidence on record that the respondent has ever tried to bring back the petitioner to matrimonial home. The learned Additional Sessions Judge has also given undue importance to the statement of RW-2, who is running a shop near the residential quarter of the respondent. It was not expected from the petitioner to bring to the notice of RW-2 the beatings given to her by the respondent. 16. Now the Court will advert to the statement of RW-3, Neeraj Kumar. He claims himself to be a relation of the parties. The relation has not been disclosed by him. It was not necessary for the petitioner to bring to the notice of RW-3, Neeraj Kumar the fact of beatings given to her by the respondent. The learned Additional Sessions Judge has given undue credence to the statements of RW-2 and RW-3. She has never refused to live with the respondent, but it is due to the circumstances beyond her control, she had to leave the matrimonial home. The learned Additional Sessions Judge has held in the opening portion of the judgment that the applicants could not maintain themselves. Respondent has not placed any tangible evidence on record to establish that the petitioner has any independent source of income. She is solely dependent on the income of the respondent. The Court can take judicial note of the fact that the salary of the respondent, who is working as Electrician in H.P.S.E.B. is more than ! 7,000/- per month. The learned trial Court has rightly awarded a sum of ! She is solely dependent on the income of the respondent. The Court can take judicial note of the fact that the salary of the respondent, who is working as Electrician in H.P.S.E.B. is more than ! 7,000/- per month. The learned trial Court has rightly awarded a sum of ! 1,200/- per month by way of maintenance to the petitioner. Thus, the learned Additional Sessions Judge has erred in law by dis-allowing the maintenance allowance to the petitioner amounting to ! 1,200/- per month. 17. The petitioner has started living separately due to the beatings given to her by the respondent and also persistent demand of dowry made by him. 18. Their Lordships of the Hon’ble Supreme Court in Sirajmohmedkhan Janmohamadkhan versus Hafizunnisa Yasinkhan and another, AIR 1981 SC 1972 have held that apprehension of physical harm on part of wife due to persistent demand of dowry is a ground for wife’s refusal to live with husband. Their Lordships of the Hon’ble supreme Court have held as under(para- 20):-“20. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband’s parents or relations, such apprehension also would be manifestly a reasonable justification for the wife’s refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive.” 19. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive.” 19. In Mannavasatyawati and others versus Mannavam, 1995 Supp.(3) Supreme Court Cases 259, their Lordships for the Hon’ble Supreme Court have held that wife and children had left the house on their own is no ground to disentitle them to maintenance. Their Lordships have held as under:“3. We have heard learned counsel for the parties. We have been taken through the judgments of the Munsif Magistrate and of the District Judge as upheld by the High Court. We are of the view that the District Judge and the High Court fell into patent error in denying the maintenance to the appellants. The High Court fell into patent error in reaching the finding that since the wife and the children left the house on their own they were not entitled to the maintenance. In the facts and circumstances of this case the respondent was bound to maintain his wife and children. We do not agree with the reasoning of the District Judge and that of the High Court. We set aside the judgment of the District Judge and of the Andhra Pradesh High Court and restore that of the Munsif Magistrate, Guntur. We agree with the reasoning and the conclusions reached by the Munsif Magistrate. We allow the appeal with costs. We quantify the costs as ‘5000/-.” 20. In the instant case, the learned Additional Sessions Judge has not assessed the evidence as a whole. The order passed by the learned Additional Sessions Judge is neither proper nor correct on legal as well as on factual aspect. It is the duty cast upon the respondent to provide all the amenities to the petitioner and her children. 21. Consequently, in view of the observations and discussions made hereinabove, the petition is allowed. The order of learned Additional Sessions Judge, Sirmour at Nahan, dated 7.9.2007 passed in Criminal Revision No.3-N/ 10 of 2007 is set aside and the order of learned trial Court dated 30.12.2006 passed in Criminal Petition No.5/4 of 2006 is restored. No costs.