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Madhya Pradesh High Court · body

2015 DIGILAW 680 (MP)

Amita v. Vipin

2015-07-02

S.R.WAGHMARE

body2015
ORDER Waghmare, J. -- 1. By this revision petition under section 397 of the CrPC, petitioner Smt. Amita Ajmera has challenged the order dated 9.9.2010 passed by Ist Additional Principal Judge, Family Court, Indore in Miscellaneous Case No.639/2009. 2. Briefly stated the facts of the case are that petitioner Amita had married respondent Vipin Ajmera on 31.1.1999 according to the Hindu Rites and two children were born out of the said wedlock. However, the respondent husband and his family members used to trouble the petitioner and made demand of dowry but she tolerated the same. When father of the petitioner was died, they started troubling her and threw her from the matrimonial home and there was compromise in the year 2002, the respondent husband brought the petitioner wife back, the petitioner cajoled her that his family should not suffer since she had two sons and sent her back but respondent and his family members did not stop troubling her for dowry and finally she left the matrimonial home and then filed an application for maintenance claiming that the husband was carrying the business in the name of M/s. Gourav Trading Company and earns Rs.20,000/- per month. He also owned the residential house and separate business was conducted by father of the respondent husband. Whereas on 20.12.2008 since the husband had assaulted and beaten the wife and throw her out of the matrimonial home, she claimed Rs.7,000/- for herself and Rs.3,000/- maintenance for her son Aadish, who is 3 years old whom she took with herself, whereas elder son Akshat is residing with the respondent husband. The respondent husband replied, denying the allegations and submitted that he has not having any business and wife has left the husband on her own will and she wanted to live in the city of Indore not in Jaora, whereas elder son Akshat is living with his father/respondent and going to school, whereas the respondent was living at rented house, the house is belonging to one Ramesh Motwani, and the respondent was looking after the family himself and residing at village Joara and his wife living at Indore and he denied the maintenance. The petitioner wife did not care about the sons and husband, who lived at Joara and she herself is capable of earning because she is running a beauty parlor in Indore and earning Rs.8,000/- to Rs.10,000/- per month. The petitioner wife did not care about the sons and husband, who lived at Joara and she herself is capable of earning because she is running a beauty parlor in Indore and earning Rs.8,000/- to Rs.10,000/- per month. The parents had also deserted the husband and was made to run from pillor to post for a job and also look after her son. She was not entitled to maintenance according to the written statement. 3. The trial Court on considering the evidence however awarded a sum of Rs.1,500/- to the wife and Rs.1,000/- to child Aadish, hence the present revision petition by the wife stating that the amount was meager under the circumstances and in these days inflation, she was unable to look after herself and her child. 4. Counsel for the petitioners has vehemently urged the fact that it was wrongly stated that wife conducted a beauty parlor and Mehendi classes' whereas she was consistently harassed by husband and his relatives and hence she had left the matrimonial home and she was living with her parents. Counsel submitted that the petitioner wife had even tried to live with her husband in Indore about a year and half but he denied the same and stated that the petitioner wife did not want to live in Jaora, it was a small place. Counsel submitted that she had even tried to go back in Jaora but due to physical cruelty and beating by her husband, she returned to Indore, which had categorically held by the trial Court and that she had made all attempts to live with respondent husband which was futile and in these circumstances Counsel prayed for enhancement since it was well established the fact that respondent husband was the business owned and easily earns more than Rs.20,000/- per month and the elder son Akshat was deliberately taken from the wife and in this ground no fraud was found with the wife. Counsel prayed that revision be allowed and the maintenance suitably be enhanced. Counsel submitted that not a single paisa is given to the petitioners, despite order has been passed in the year 2010 and even before this Court, the husband as well as his Advocate have not appeared although power has been filed by his Advocate. Counsel submitted that the respondent husband is avoiding paying the maintenance and action be taken against him. 5. Counsel submitted that the respondent husband is avoiding paying the maintenance and action be taken against him. 5. On considering the above submissions and perusing the impugned judgment and written statements of the respondent husband in the trial Court, it is found that the respondent husband has denied running any business in the name of M/s. Gourav Trading and urged that wife has left the matrimonial home because she wanted to live in the city of Indore. The husband has made attempt to Indore by living in a rented house of one Ramesh Motwani and the wife has taken the other son and deprived the husband. There is no evidence on record regarding his earning or property. However at the same time there is no reason to disbelieve the statements on oath by the wife that husband is conducing the business of food grains at Sarafa Bazar at Jaora. Besides lower Court has also given categorical finding that several attempts were made by the wife to go back that were rendered futile. In these days of inflation undoubtedly it is the moral duty of the husband to look after the wife and his sons. In this regard and without going on the merit of the case, it is directed that the impugned order is set aside only to the extent that award of maintenance is enhanced to Rs.2,000/- to wife and Rs.2,000/- to child Aadish and respondent husband shall be liable to pay the enhanced amount from the date of this order and the arrears shall carry on interest @9% per annum and failure to make payment and the husband shall be liable to face execution, if the awarded amount is not deposited within a period of two months from the date of this order. 6. With the aforesaid observations and directions, the revision petition is partly allowed to the extent herein above indicated. 7. Costs of Rs.2000/- be also paid.