Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 670 (HP)

Jyotsana Chauhan v. Suneel Chauhan

2013-07-18

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, J. (Oral). The wife and daughter have filed this petition, under Article 227 of Constitution of India read with Section 482 Cr.P.C., against common order, dated 3.7.2012, passed by learned Sessions Judge, Shimla in Criminal Revision No. 13-S/10 of 2012 and Criminal Revision No. 19-S/10 of 2011. 2. The facts in brief are that petitioners had filed a petition, under section 125 Cr.P.C. against the respondent for maintenance claiming Rs.15,000/- and Rs.5,000/- per month, respectively, from the respondent. It has been pleaded that marriage between petitioner No. 1 and respondent was solemnized on 4.11.1999. From the wedlock, petitioner No. 2 was born on 4.2.2006. The respondent treated the petitioner No. 1 with cruelty in connivance with and at the instance of his parents. The petitioner No. 1 was compelled to take shelter in her parental house and since then she has been residing with her parents. 3. The respondent did not bother to pay any maintenance to petitioners. The respondent is an able bodied person and is having an apple orchard at village Dharkalan and earning rupees seven to nine lakhs per year from the orchard. He is also owning two plots of 5 biswas each at Churath Nalla having market value between 12 to 14 lakhs. The respondent has sufficient means to pay maintenance to the petitioners. The petitioners have no source of income. The respondent has failed to pay any maintenance to the petitioners, therefore, they filed petition, under section 125 Cr.P.C. claiming maintenance, as noticed above. 4. The respondent contested the petition and took preliminary objections of maintainability and estoppel. On merits, the respondent did not deny his marriage with petitioner No. 1 and subsequent birth of petitioner No. 2 from the marriage. It was pleaded that at the time of marriage, both petitioner No. 1 and respondent were students and marriage was solemnized without the knowledge of their parents. The marriage was first time disclosed to the parents of the respondent in the year 2005. The parents of the respondent went to the house of parents of petitioner No. 1 but they were disgraced. The reception of marriage was organized by the parents of respondent, but parents of petitioner No. 1 did not attend the reception, which was held on 23.5.2005. The allegations of cruelty were denied by the respondent. The parents of the respondent went to the house of parents of petitioner No. 1 but they were disgraced. The reception of marriage was organized by the parents of respondent, but parents of petitioner No. 1 did not attend the reception, which was held on 23.5.2005. The allegations of cruelty were denied by the respondent. He has pleaded that petitioner No. 1 has not come to the court with clean hands. A plea of desertion on the part of petitioner No. 1 was pleaded. 5. It has also been pleaded that petitioner No. 1 wants that respondent should not live in his native place, rather he should live separately from his parents at Shimla. This was not accepted by the respondent. The persuasions made by the respondent were proved futile; therefore, petitioner No. 1 left the matrimonial home in December 2008. He denied having any apple orchard, as alleged by the petitioners. He has also denied income of rupees seven to eight lakhs per year from alleged apple orchard. He has, however, admitted that he is having “Ghasni” land measuring 2-10 biswas at village Dharkalan and one plot measuring 4 biswas at Churath Nalla. He has no independent source of income to maintain himself. The rejoinder was filed by the petitioners controverting the stand taken by the respondent. 6. The learned Chief Judicial Magistrate on 9.3.2011 allowed the petition and granted maintenance at the rate of Rs.5,000/- per month in favour of petitioner No. 2 with effect from 4.9.2008, the date of filing of the petition. The claim of petitioner No. 1 for maintenance was rejected. The petitioners filed Criminal Revision No. 13-S/10 of 2012 against the order dated 9.3.2011, whereas respondent filed Criminal Revision No. 19-S/10 of 2011 against the order dated 9.3.2011. Both the revisions were decided by learned Sessions Judge by a common order dated 3.7.2012. The revision petition No. 13-S/10 of 2012 was allowed, whereas Criminal Revision No. 19-S/10 of 2011 was disposed of with modification and petitioner No. 1 was allowed maintenance at the rate of Rs.4,000/- per month and petitioner No. 2 was allowed maintenance at the rate of Rs.2,000/- per month, which was to be paid by the respondent from the date of institution of petition. The petitioners have assailed in this petition, the common order dated 3.7.2012. 7. I have heard Mr. Satyen Vaidya, Advocate, learned counsel for respondent. The petitioners have assailed in this petition, the common order dated 3.7.2012. 7. I have heard Mr. Satyen Vaidya, Advocate, learned counsel for respondent. On 17.7.2013 none appeared on behalf of the petitioners and petition was ordered to be listed for today (18.7.2013), but today also none appeared on behalf of the petitioners. I have perused the record and therefore, in view of Harjinder Singh vs. Sate of Punjab (2010) 13 SCC 533 , I am proceeding to dispose of the petition on the basis of record. 8. In the petition, it has been stated that quantum of maintenance is against law and facts and, therefore, same is liable to be modified. The learned Sessions Judge has erred in allowing total maintenance Rs.6,000/- only. The respondent is a man of means having plot at Shjimla and owner in possession of agriculture land and owner in possession of an orchard. The respondent after filing the petition had sold land in an attempt to defeat the claim of petitioners. The respondent has no other responsibility other than the petitioners. The maintenance allowed by the learned Sessions Judge is meager. The maintenance is also not in consonance with the status of the parties. The petitioner No. 1 has claimed maintenance at the rate of Rs.15,000/- per month and petitioner No. 2 at the rate of Rs.10,000/- per month. 9. The learned counsel for the respondent has submitted that respondent has no source of income. He is residing and living with his parents and is dependant on them. He has no orchard or other property generating recurring income. The marriage between the respondent and petitioner No. 1 was solemnized when both of them were students. The petitioner No. 1 at her own volition had left matrimonial home and started living with her parents. In the facts and circumstances of the case, the learned Sessions Judge has fixed the maintenance in favour of petitioners on the higher side, but respondent has not assailed the impugned order. The learned counsel for the respondent has supported the impugned order. 10. PW 1 Jyotsna Chauhan has stated that she and respondent had solemnized marriage on 4.11.1999, petitioner No. 2 was born from the marriage and both petitioners are living with the parents of petitioner No. 1. She has no source of income and is dependant on her parents. The learned counsel for the respondent has supported the impugned order. 10. PW 1 Jyotsna Chauhan has stated that she and respondent had solemnized marriage on 4.11.1999, petitioner No. 2 was born from the marriage and both petitioners are living with the parents of petitioner No. 1. She has no source of income and is dependant on her parents. The respondent was not maintaining the petitioners, rather he abused and gave beatings to petitioner No.1, therefore, she opted to live with her parents, who are looking after petitioners. The respondent is not maintaining the petitioners. The respondent is dealing in apples and managing apple orchards. The respondent is living with his parents in the village. He is earning rupees seven to eight lakhs per annum from the orchard. The respondent has four storeyed house at Bhathakufar, Shimla in which there are several tenants. The parents of petitioner No. 1 are incurring rupees ten thousand per month expenditure for maintaining the petitioners, whereas petitioners require rupees twenty thousands per month. She has produced the copies of jamabandi Ex. PW 1/A to Ex. PW 1/D. 11. In cross-examination, PW 1 has stated that she performed the marriage without the consent of her parents and without telling them. Similarly, respondent also did not tell his parents about the marriage. The respondent was about 21 years at the time of marriage. The respondent was a student, so also petitioner No. 1. They started living together since April 2005. The parents of respondent as well as her parents were not aware of their marriage till 2005. She has also stated that in April 2005, her parents did not accept the marriage. She has admitted that respondent has no orchard in his own name. She stayed in village Dharkalan from April 2005 to June 2006. She has also stated that she is not prepared to live with the respondent as the respondent has suspected her character. The building in Shimla is owned by the father of respondent. The rental income of that building is the income of the father of respondent. She has stated that respondent only looks after the orchard of his father and he has no source of income. 12. RW 1 Suneel Chauhan has stated about his marriage with petitioner No.1. He denied any demand of dowry. The rental income of that building is the income of the father of respondent. She has stated that respondent only looks after the orchard of his father and he has no source of income. 12. RW 1 Suneel Chauhan has stated about his marriage with petitioner No.1. He denied any demand of dowry. He owns 2½ bighas “Ghasni” land in village Dharkalan and 4 biswas land at Churath Nalla, Shimla. The plot at Churath Nalla is lying vacant. He is living with his father. He requested petitioner No. 1 to return to matrimonial home, but she declined to join the company of respondent. He is paying interim maintenance from the pension of his father. He has taken an insurance policy in the name of his daughter. He is dependant on his father. In cross-examination, he has stated that he is plus two and not graduate, whereas petitioner No. 1 is M.A. B.Ed. He denied that he transferred any land in favour of his mother after the filing of the petition. He denied that petitioner No. 1 was ill-treated. RW 2 Kewal Ram, father of respondent has supported the respondent. This is the entire evidence led by the parties. 13. It emerges from the evidence that respondent was about 21 years and a student when he solemnized the marriage with petitioner No.1 on 4.11.1999. The petitioner No. 2 was born on 4.2.2006. The respondent has ten plus two qualification, whereas petitioner No. 1 is MA B.Ed. The petitioner No. 1 started living with respondent in 2005 in the house of the father of respondent. It is admitted fact that petitioners are living separately at Shimla with the parents of petitioner No.1. The petitioner No. 1 has alleged that due to cruel behaviour of respondent and his parents, she has been compelled to live with her parents at Shimla. On the contrary, as per respondent the petitioner of her own volition is living separately. 14. It has also come on record that petitioners have no independent source of income. The respondent being the husband of petitioner No.1 and father of petitioner No. 2 is under obligation to maintain them. He is an able bodied person. In fact, it is not his defence that he is not in a position to earn anything due to physical incapacity. The respondent being the husband of petitioner No.1 and father of petitioner No. 2 is under obligation to maintain them. He is an able bodied person. In fact, it is not his defence that he is not in a position to earn anything due to physical incapacity. In these circumstances, no fault can be found with the findings of the court below that respondent is under obligation to maintain the petitioners. 15. The question is regarding the quantum of maintenance. The respondent has stated that he has no source of income. He owns only 2½ bighas “Ghasni” land at village Dharkalan and 4 biswas plot at Churath Nalla, Shimla. There is no evidence on record that from these properties, the respondent is earning any recurring income. The petitioners have not placed any material on record to establish the income of the respondent, who has taken the stand that he has no source of income and he is dependant on his parents. The petitioner No. 1 has admitted in her statement that respondent has no source of income. The building at Shimla is also in the name of the father of the respondent from which the father of the respondent is receiving rental income. There is no specific evidence regarding the income of the respondent, but simultaneously respondent is an able bodied person, therefore, it can be safely assumed that he is in a position to earn something for his own maintenance as well as maintenance of the petitioners. He cannot be permitted to take shelter that since he is not earning anything, therefore, he is not liable to pay any maintenance to the petitioners. 16. The learned Sessions Judge has allowed maintenance to petitioner No. 1 Rs.4,000/- per month and to petitioner No. 2 Rs.2,000/-per month, which shall be payable by the respondent from the date of filing of the petition. The maintenance allowed by learned Sessions Judge to the petitioners in the facts and circumstances of the case, cannot be said to be excessive. The petitioners have miserably failed to make out a case for enhancement of maintenance in their favour by modifying common order dated 3.7.2012. The scope of petition, under Article 227 of Constitution of India read with Section 482 Cr.P.C. is very narrow. There is no perversity in the impugned order. The respondent has not assailed the order dated 3.7.2012 of learned Sessions Judge. The scope of petition, under Article 227 of Constitution of India read with Section 482 Cr.P.C. is very narrow. There is no perversity in the impugned order. The respondent has not assailed the order dated 3.7.2012 of learned Sessions Judge. The view taken by the learned Sessions Judge emerges from the evidence on record. There is no merit in the petition. 17. In view of above discussion, the petition fails and is accordingly dismissed.