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2014 DIGILAW 369 (CHH)

Usha @ Gayatri Chandrosa v. Bheshram Chandrosa

2014-10-28

PRASHANT KUMAR MISHRA

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ORDER PRASHANT KUMAR MISHRA, J. 1. This revision application under Section 19 (4) of the Family Courts Act has been preferred challenging the legality and validity of the impugned order passed by the Family Court, Raigarh rejecting the applicants’ application under Section 125 CrPC. 2. The applicants preferred the subject application seeking grant of maintenance of Rs.5,000/-each on submission that applicant No.1 and the non-applicant were married on 25.4.1988. They had 3 issues namely, son Lokesh, aged 18 years; daughter Megha, aged 16 years and applicant No.2 Ankit, aged 10 years. While Lokesh and Megha are residing with the non-applicant, Ankit is residing with applicant No.1. The non-applicant is employed with STPP, CG Electricity Board, Darri and is earning Rs.25,000/-per month (in the year 2007). When the father of applicant No.1 gifted one motorcycle in the marriage of younger sister of applicant No.1, the non-applicant started treating her with cruelty by saying that he was not gifted motorcycle at the time of marriage. He started demanding Rs.1,50,000/-as dowry. The applicant No.1 somehow sustained cruelty and torture as Hindu wife, but when it became unbearable, she tried to resist. Her father also tried to convince the non-applicant to stop ill-treating her, but instead of stopping cruelty, the non-applicant brought them to her parental house and left the applicants at Raigarh and since thereafter she is residing at Raigarh. The non-applicant is also not paying any amount towards maintenance and education of the applicant No.2. 3. The non-applicant resisted the application on submission that the applicants are making false allegations after 19 years of marriage. On one occasion, the applicant No.1 went to Kartala along with her friend Usha Mandal for 2 days but stayed there for 8 days. The applicant No.1 is a stubborn and arrogant lady. She used to raise quarrel on trivial issues and has left the marital home willingly. The applicant No.1, in fact, is desirous of living with a Christian boy, who resides in front of their house with whom she has illicit relations. The applicant No.1 is not applying vermilion on her forehead and is not wearing Mangalsutra, therefore, for all these reasons, she is not entitled for maintenance. 4. At the end of enquiry, the family Court rejected the application on the ground that the father of applicant No.1 is unnecessarily supporting her for living separately from her husband. The applicant No.1 is not applying vermilion on her forehead and is not wearing Mangalsutra, therefore, for all these reasons, she is not entitled for maintenance. 4. At the end of enquiry, the family Court rejected the application on the ground that the father of applicant No.1 is unnecessarily supporting her for living separately from her husband. It has also been found by the family Court that the non-applicant was behaving indifferently and her daughter Megha, aged about 16 years, has stated that her mother is responsible for the strained relations between their parents. The family Court thus found that the applicant No.1 is residing separately out of her own free will, therefore, they are not entitled for maintenance. 5. Having heard learned counsel for the parties and on perusal of the record, it would appear to this Court that the family Court has committed serious illegality by denying maintenance to the applicants. The applicant No.1 has clearly stated that she is depending upon the pension amount of her father. She has also stated that about 3 years back, the non-applicant himself left her and applicant No.2 in her parental house at Raigarh. There is nothing in the statement of their daughter Megha by which it can be inferred that the applicant No.1 left the house willingly and without any reasonable cause. The applicants have filed letters written by the non-applicant to the father of applicant No.1 in which he has stated that he cannot live with the applicant No.1, therefore, he (father of applicant No.1) should take applicant No.1 with him. Thus, it was the non-applicant, who wanted to live separately from his wife. The family Court has not recorded any finding with respect to entitlement of applicant No.2. There is no discussion at all as to whether the non-applicant is taking care of bringing up and education of applicant No.2. 6. There is one more glaring aspect of the matter. While filing reply before the family Court, the non-applicant stated in para-15 thereof that the applicant No.1 has illicit relations with a Christian boy, who lives in front of their house and she is desirous of living with him. However, when examined in the Court, the non-applicant did not utter a single word about this aspect of the matter. 7. In Phuljhar Basor (Smt) Vs. However, when examined in the Court, the non-applicant did not utter a single word about this aspect of the matter. 7. In Phuljhar Basor (Smt) Vs. MunnilLal { 1998 (II) MPWN 94 }, Single Bench of the Madhya Pradesh High Court has held that when the allegation is made by the husband regarding character and integrity of the wife, she is entitled to live separately and claim maintenance because such unsubstantiated allegation itself amounts to cruelty. The following has been held by the Madhya Pradesh High Court in the case of Phuljhar Basor (Smt.) (Supra):- “Quite apart from the above, on a perusal of the objection filed by the husband which has been taken note of by the learned Magistrate, it is noticeable that there are allegations by the husband pertaining to the character and integrity of the wife. He has alleged that she had run away with one Jhallu to Panjab and had stayed with him for 4 to 5 years. The attempt of the husband, as it appears, is to deprive the wife of grant of maintenance on the ground she has disentitled herself by her own conduct. Except taking such a plea, nothing has been brought on record to substantiate the same. It is well settled in law that if allegations of this nature are made and they remain unsubstantiated, it would be a justifiable ground on the part of the wife to desert the husband. In this context I may profitably refer to the decision rendered in the case of Smt. Shyamkali v. Bhaiyalal alias Ganesh, 1997 CrJR (MP) 280 wherein this Court registered its view to the effect that if false allegations of unchastity are made against a wife, it is a cruelty itself.” 8. For the foregoing, this Court is of the considered opinion that learned Presiding Officer of the Family Court has committed serious illegality amounting to error of jurisdiction while rejecting the applicants’ claim for maintenance. Making allegation against the wife regarding her character and integrity and thereafter not substantiating the same would itself amount to cruelty and the wife and children are, therefore, entitled for maintenance. Making allegation against the wife regarding her character and integrity and thereafter not substantiating the same would itself amount to cruelty and the wife and children are, therefore, entitled for maintenance. The non-applicant was getting salary of Rs.25,000/-per month in the year 2007, therefore, considering that 7 more years have elapsed thereafter, this Court deems it appropriate to direct the nonapplicant to pay the amount of Rs.5,000/-each to both the applicants towards maintenance from the date of application. The non-applicant shall pay accumulated arrears within a period of 6 months, in 6 equal installments. However, the current amount of maintenance shall be paid by 7th day of every month. 9. The revision is accordingly allowed.