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Allahabad High Court · body

2013 DIGILAW 80 (ALL)

MANOJ KUMAR v. STATE OF U. P.

2013-01-08

HET SINGH YADAV

body2013
Het Singh Yadav, J. Challenge in this revision is to the order dated 5.5.2008 rendered by the Judicial Magistrate, ( Court No. 3), Bijnor on the application of the wife of the Revisionist arrayed as Respondent No. 2 in the instant revision, purported to be under Section 125 of the Criminal Procedure Code, 1973 ( In short the Code) whereby the learned Magistrate has ordered payment of monthly allowances of Rs. 1,500/- for the maintenance of the wife and Rs. 1,000/- for the maintenance of the minor son, is impugned in this Revision. Filtering out unnecessary details, the facts leading to the filling of this revision are that the marriage between the Revisionist and the Respondent No. 2 was solemnized on 10.6.1989 according to the Hindu rites and rituals. From the said wedlock, a male child viz. Prashant Kumar was born, who was about 10 year at the time of filing the application. Unfortunately, their marriage wrecked on the bedrock of estranged relations. The allegations substantially in the application for maintenance by the wife are that her husband and her in-laws ill-treated her and subjected her to cruelty and harassment for being unable to meet the gratuitous dowry demand. It is further alleged that when the dowry demand could not be satisfied, the revisionist turned her out from his home in the year, 2004 and there being no alternative, she came to live with her parents and has been residing with her parents along with her minor child. The matrix of necessary facts as would crystallize from allegations and counter allegations substantially are that the revisionist neglected to maintain the respondent No. 2 ( his wife) and his legitimate minor child; and therefore, she was compelled to take recourse to the provisions of Section 125 of the Code by moving an application for maintenance against the Revisionist in the court of Judicial Magistrate, Bijnor. The Revisionist filed his objections against the application for maintenance of his wife in which he refuted the allegations and submitted that his wife was not entitled to any maintenance from him on the ground that he did not have sufficient means to maintain them, that his wife was able to maintain herself and lastly, that without sufficient reason, she refused to live with him. It is also alleged that she was leading an adulterous life. It is also alleged that she was leading an adulterous life. The learned Magistrate, however, by the impugned order, allowed the application and ordered the Revisionist to pay monthly allowances as aforementioned, which is under challenge in this revision. I have heard learned counsel for the parties at considerable length and have also been taken through the materials on record. Learned counsel for the Revisionist in his submissions made a bid to assail the impugned order on factual grounds. It is contended that the Revisionist is a casual labourer and his means are not such as to afford maintenance at the rate granted by the court below. On the other hand, it is contended that his wife has means to maintain herself and her child. To be precise, he gave details about the income stating that she was earning to the tune of Rs. 5000/- per month from tuition and tailoring work etc. Thus, it is argued, she cannot be said to be unable to maintain herself. It is also argued that the Respondent No. 2 has produced no evidence not to speak of any satisfactory evidence to prove the income of the Revisionist followed by the submission that the learned Magistrate without any cogent material on record in proof of the income of the Revisionist, passed the impugned order in a perfunctory manner directing him to pay maintenance as aforementioned to his wife and his minor son. It is also submitted that the learned Magistrate has taken into account the income of the Revisionist from the holdings of his father, which according to him, is absolutely incorrect. The learned Magistrate, not only committed gross error in holding that the Revisionist had sufficient means and has neglected to maintain his wife and minor son but also committed illegality in observing that the wife was unable to maintain herself. The learned counsel further contended that the learned Magistrate has eschewed from consideration that the wife has refused to live with her husband without any cogent and convincing reason. It has also not been considered by the learned Magistrate that she was living in adultery. Thus, the learned Magistrate ignoring the significant provisions of Section 125 of the Code has proceeded to pass the impugned order- taking a lop-sided view by taking into reckoning the case of the wife alone. It has also not been considered by the learned Magistrate that she was living in adultery. Thus, the learned Magistrate ignoring the significant provisions of Section 125 of the Code has proceeded to pass the impugned order- taking a lop-sided view by taking into reckoning the case of the wife alone. The learned counsel also assailed the impugned order over the quantum of maintenance allowed to the wife. Learned A.G.A refuting the arguments of the learned counsel for the Revisionist has submitted that in this case, it brooks no dispute that the Respondent no. 2 is the legally wedded wife of the Revisionist and the minor is his legitimate son. He also contended that it goes without saying that both are unable to maintain themselves. He also contended that the Revisionist is an able bodied man and is a graduate. During his cross-examination it is stated by him that he is doing job with Jilao Firm, Loco Road, Moradabad. It was also stated that his father was possessed of sufficient agricultural land. Thus, it leaves no manner of doubt that his family background is sound. Indisputably, the respondent No. 2 is living separately from him along with the legitimate child for the last many years. The revisionist, it is submitted, despite having sufficient means has neglected to maintain his wife and his legitimate minor child, who are unable to maintain themselves. It is on record that the Revisionist and his parents had treated Revisionist's wife with cruelty in furtherance of their demand for more dowry. In these circumstances, there may be apprehension in her mind that she is likely to be physically harmed. Such apprehension also would furnish reasonable justification for her refusal to live with her husband. Besides the revisionist has made allegations that his wife is leading an adulterous life without any valid proof, which is equally a ground for separate living of his wife. The learned A.G.A. has supported the impugned order contending that the learned Magistrate has committed no illegality apparent on the face of the record in granting the maintenance allowances to the wife and the legitimate minor child. I have given my thoughtful consideration to the rival submissions made on behalf of learned counsel for both the parties. The learned A.G.A. has supported the impugned order contending that the learned Magistrate has committed no illegality apparent on the face of the record in granting the maintenance allowances to the wife and the legitimate minor child. I have given my thoughtful consideration to the rival submissions made on behalf of learned counsel for both the parties. The first and foremost question that crops up for consideration is -whether the Revisionist is not having sufficient means to maintain his wife and his legitimate minor child. In dealing with this question I feel called to refer to the submissions of the learned counsel for the Revisionist which is that the revisionist happens to be a casual labourer and thus he is not having sufficient means to maintain his wife and his minor child. It has not been disputed that the Revisionist is an able bodied and physically sound person. He is a graduate. As per his own admission elicited during cross-examination before the Magistrate that he was employed with Jilao Firm, Loco Road, Moradabad. What lends further credence to the case of the respondent no 2 is that she has produced before the Magistrate the extracts of Khatunees in order to establish that Revisionist's father is possessed of sufficient agricultural land. Thus, it is sought to be established that the revisionist is having good family background. Having considered all these facts, it leaves no manner of doubt that the revisionist has sufficient means to maintain his wife and his minor child. Before I proceed further, it be appropriate to refer to certain ex-cathedra decision on the point. The first decision on the point is Kandasami Chetty, AIR 1926 Mad 346 ( A) in which Madra High Court held that the word "means" used in the Section did not mean that the husband should be possessed of any tangible property, but if a man was healthy and able bodied he must be taken to have the means to support his wife. The above view was followed by this Court in Dhani Ram Vs. Ram Dei, AIR 1955 Allahabad 320, held that the word 'means' includes earning capacity. Hence, when a man is healthy and able bodied he must be taken to have the means to support his wife. In Chander Prakash Boadh Raj v. Sheila Rani Chander Prakash, 1963 Cr.LJ. The above view was followed by this Court in Dhani Ram Vs. Ram Dei, AIR 1955 Allahabad 320, held that the word 'means' includes earning capacity. Hence, when a man is healthy and able bodied he must be taken to have the means to support his wife. In Chander Prakash Boadh Raj v. Sheila Rani Chander Prakash, 1963 Cr.LJ. 1153, Delhi High Court held that an able bodied young man has to be presumed to be capable of earning sufficient money reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn to be able to maintain them according to the family standard. The apex court in Savitaben Somabhai Vs. Sate of Gujarat and Others, 2005 Cr.L.J. 2141 held: " the provision is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15 ( 3) reinforced by Article 39 of the Constitution of India, 1950 ( in short Constitution). The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintenance themselves." If the submissions advance across the bar by the learned counsel for the revisionist is viewed analytically in the light of the above rulings, there is no force in the submissions of the learned counsel simply for the reason that the wife of the Revisionist had not produced any evidence to prove the income of the Revisionist before the learned Magistrate or that the Magistrate erred in observing that the Revisionist was having sufficient means to maintain his wife and the minor child. The Revisionist is not only able bodied and physically sound person but also he is a graduate and as per his own contention he is doing private job. His family background is also sound and therefore, the finding of fact recorded by the Magistrate that the Revisionist is having sufficient means is not liable to be disturbed in this Revision. The next point involved in this revision is whether the wife of the Revisionist is able to maintain herself. His wife ( Respondent no. His family background is also sound and therefore, the finding of fact recorded by the Magistrate that the Revisionist is having sufficient means is not liable to be disturbed in this Revision. The next point involved in this revision is whether the wife of the Revisionist is able to maintain herself. His wife ( Respondent no. 2) in her application as well as during her evidence before the Magistrate has categorically stated that she has studied upto 8th standard; and therefore, she is unable to get any job. She is having no sufficient means of her livelihood and therefore, she is unable to maintain herself and the legitimate minor child of the Revisionist. The Revisionist in his objection though stated that his wife is earning Rs. 5000/- per month from tuition, tailoring work etc. but he failed to adduce any evidence to prove the income of his wife as alleged by him. It may be mentioned here that the apex court in Savitaben Somabhai ( Supra) held that Section 125 of the Code is enacted for social justice to protect woman and children etc. and the provision gives effect to the natural and fundamental duty of a man to maintain his wife and children etc. so long as they are unable to maintain themselves. Thus, the burden of proof that the Revisionist is able to maintain herself, squarely lies on the Revisionist. In this regard, it is sufficient for the wife to say that she is unable to maintain herself and the wife is not supposed to prove this by any clinching evidence. Since the Revisionist has failed to produce evidence to prove that his wife is able to maintain herself, and the learned Magistrate has rightly held that the wife is unable to maintain herself. In this view of the matter, I am not inclined to interfere with the finding of fact in the revisional jurisdiction of this Court. The next point raised by the learned counsel for the Revisionist is that the quantum of the maintenance is highly excessive and is not in accordance with the financial and social status of the parties particularly in view of that the Revisionist is having no sufficient means. What should be amount of maintenance is a finding of fact based on evidence and the material produced on record by both the sides. What should be amount of maintenance is a finding of fact based on evidence and the material produced on record by both the sides. The quantum depends upon the position or status of the parties including the financial position of the husband. In connection with the above submission, I feel called to advert to the decision in EKradeshwari vs. Homeshwar AIR 1929 PC 128 in which the Privy Council observed that maintenance depends upon a gathering together of all the facts and the situation, amount of free estate, the past life of the married parties and the family and survey of the members, on reasonable view of change of circumstances, possibly required in future, regard having of course be given to the scale and mode of living and the age, habits and wants and class of life of the parties. The apex court upheld the above observation of the Privy Council in Kulbhushan Vs. Raj Kumari, 1971 AIR 234 that the amount of maintenance should be so-much that it should aid the wife to live in a similar style as she enjoyed in the matrimonial home. This Court in Smt. Veena Panda Vs. Devendra Kumar Panda [ 2006 ( 63) ALR 543 ] case under Section 24 of Hindu Marriage Act, 1955 held: "The gamut of all the aforesaid case laws is that as long as matrimonial ties subsists between the parties, the wife is entitled to live in the matrimonial house or in separate building. The wife should not be relegated to a lower standard of living than that the husband enjoys. She should be given maintenance according to status of her husband. While considering the question of 'maintenance pendente lite' under Section 24 of the Hindu Marriage Act its definition as given in Hindu Adoption and Maintenance Act should be adopted and some significant points should necessarily be taken into account such as ( i) position and status of the parties, ( ii) reasonable wants of the claimant, towards food, clothing, shelter and medical attendance etc., ( iii) income of the respondent, ( iv) income, if any, of the claimant, ( v) number of persons the respondent is obliged to maintain. As regards quantum of maintenance it may be from 1/3rd to 50% of the income of the respondent but no rigid formula can be fixed." In this case as aforementioned, the family background of the Revisionist is sound enough studded with the fact that the revision is educated and he has completed his graduation. On the other hand, his wife is a daughter of a teacher. She is also maintaining the minor legitimate child of the Revisionist, who is a school going boy. Therefore, the monthly allowance of Rs. 2,500/- in all as maintenance is not excessive particularly in view of these days of high inflation. Moreover, this is equally a finding of fact and based on evidence and material available on record before the Magistrate and the same does not suffer from any illegality as such, is not liable to be interfered with in the Revision. The next point raised by the learned counsel for the Revisionist is that the Revisionist offered to maintain his wife on condition of her living with him but she refused to live with him without any just ground. The learned Magistrate was, therefore, bound to consider the ground of refusal sated by the wife and he should have made an order in this regard. The learned Magistrate, however, failed to consider this important aspect of the case while deciding the maintenance application, and by this reckoning, it is argued, the impugned order suffers from the blemish of patent error and illegality and deserves to be set aside. These contentions of the learned counsel for the Revisionist do not commend to me for acceptance for the reason that there is nothing on record to establish that the Revisionist ever offered to maintain his wife on the condition of her living with him. On the contrary, it would transpire, he has filed Divorce Petition on 16.1.2004 in the court of competent jurisdiction much prior to the maintenance application of his wife. The Respondent No. 2 in her application and in her statement on oath before the Magistrate has categorically stated that she was subjected to cruelty by her husband and his parents in connection with dowry demand. Therefore, the wife had a reasonable apprehension arising from the conduct of the husband that she was likely to be physically harmed and such apprehension would furnish reasonable justification for her to refuse to live with her husband. Therefore, the wife had a reasonable apprehension arising from the conduct of the husband that she was likely to be physically harmed and such apprehension would furnish reasonable justification for her to refuse to live with her husband. In Sirajmohmedkhan Janmohamadhkhan Vs. Hafizunnisa Yasinkhan reported in 1981 Cri L.J. 1439 the apex court held thus:- "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 the 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." The Revisionist has already filed a divorce petition against his wife even prior to moving the maintenance application and therefore, this is also a sufficient ground for the wife to refuse to live with her husband. In Mst. Khatoon Vs. Mohd. Yamin reported in ( 1982) 2 Supreme Court Cases 373 the apex court held thus: "It appears from the judgement of the Magistrate that the appellant had gone to the village to attend a marriage and there is nothing to show that she had actually lived with the husband and then returned. In Mst. Khatoon Vs. Mohd. Yamin reported in ( 1982) 2 Supreme Court Cases 373 the apex court held thus: "It appears from the judgement of the Magistrate that the appellant had gone to the village to attend a marriage and there is nothing to show that she had actually lived with the husband and then returned. Even apart from that the very fact that the letter was couched in most discourteous terms and amounted to a clear threat to divorce the wife and sought to obtain her consent to live with him under duress, this was in our opinion a sufficient reason for the wife for refusing to live with her husband. On this ground, alone the order of the Sessions Judge was fully supportable in law and the High Court erred in interfering in revision." Thus, in view of above discussion particularly taking in view the ratio flowing from the decisions of the apex court as aforesaid, the wife certainly has had just ground to refuse to live with her husband ( Revisionist). Thus, there is no error or illegality permeating the impugned order. The last point raised by the learned counsel for the Revisionist is that the learned Magistrate has failed to consider the plea taken by the Revisionist in his objections that his wife is living in adultery and therefore, as per subsections ( 4) and ( 5) of Section 125 of the Code she is not entitled to get maintenance, which it is argued, have been ignored by the learned Magistrate while allowing the application of the Respondent No. 2. Sub-section ( 4) and Sub-section ( 5) of Section 125 are reproduced below: Subsection ( 4) : No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Subsection ( 5) : On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. Subsection ( 5) : On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. A bare perusal of the aforesaid provisions undoubtedly shows that the wife shall not be entitled to receive any maintenance from her husband, if she is living in adultery. However, the maintenance can be denied on proof that the wife is living in adultery. In this case the Revisionist has made bald allegations against his wife but he has produced no proof in this regard. Learned Magistrate, therefore, rightly not considered the allegations of adultery made by the Revisionist. In view of the discussion made above, the Revision has no merits and accordingly dismissed.