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Madhya Pradesh High Court · body

2016 DIGILAW 343 (MP)

Manoj v. Sakun

2016-04-28

SUBHASH KAKADE

body2016
ORDER 1. This application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short) has been filed by the applicant/husband against the order dated 22.11.2014, passed in Criminal Revision No.143/2014, by Sessions Judge, Chhindwara, whereby learned revisional Court rejected the revision filed by the applicant, arising out of order dated 23.2.3013, passed in Miscellaneous Criminal Case No.128/2011, by Judicial Magistrate First Class, Parasiya, District Chhindwara, whereby the application filed by the respondents/wife and son under section 125, CrPC has been allowed granting maintenance of Rs.1,000/- each per month to them. 2. The application on behalf of the respondents filed under the provisions of section 125 of the Code before learned trial Court contending that the marriage between the applicant and the respondent No.1 was solemnized on 24.6.2006 as per the Hindu rites and rituals. Respondent No.2 is the son of the couple. It is alleged by the respondents that after sometime of marriage the applicant and his family members demanded dowry and thus, tortured the respondent No.1. A complaint was made by her before Superintendent of Police, Chhindwara but no case was registered against the applicant. Reason for separate living also mentioned that the applicant re-married with Sapana daughter of Suresh Waghmare and also having one son. It is further contended that the applicant is a Supervisor in Galla Mandi, Kusmaili, District Chhindwara and as such earns Rs.15,000/- per month. On the contrary respondent No.1 has no source of income, hence, prays for maintenance to the tune of Rs.5,000/- per month. 3. Applicant entered his appearance by filing reply praying to reject the said application on the grounds that the respondent No.1 pressurized the applicant to live separately. The respondent No.1 came to her parental home and was not ready to go to her matrimonial house even tried by the applicant several times. The applicant has made an application before Pariwar Paramarsh Kendra in the year 2009 but the respondent No.1 in the month of April, 2009 denied to live with the applicant. The respondent No.1 earns Rs.4,000/- by doing tailoring work. 4. Learned trial Court allowed the application filed by the respondents vide order dated 23.2.2013. Against this rejection order the applicant filed a revision before the learned lower revisional Court and the same was dismissed affirming the order passed by the learned Judicial Magistrate First Class, hence, this application. 5. The respondent No.1 earns Rs.4,000/- by doing tailoring work. 4. Learned trial Court allowed the application filed by the respondents vide order dated 23.2.2013. Against this rejection order the applicant filed a revision before the learned lower revisional Court and the same was dismissed affirming the order passed by the learned Judicial Magistrate First Class, hence, this application. 5. Shri Vitthal Rao Jumre, learned counsel for the applicant submitted that the order passed by the learned Courts below is illegal, arbitrary and against the law and fact, and hence, unsustainable in the eye of law. Learned Courts below ought to have seen this aspect that the respondent No.1 willfully living at her parental house The applicant is a labour and earns Rs.3,000/- per months only. The finding recorded by the learned trial Court is prima facie illegal, erroneous and contrary to law. The respondent No.1 is well experienced in stitching and embroidery jobs and hence, capable to maintain herself and her son i.e. respondent No.2, therefore, the impugned orders dated 22.11.2014 and 23.2.2013 are liable to be set aside. 6. Heard learned counsel for the applicant at length and after perusal of the available record carefully, this Court has come to conclusion that this application has no substance; hence, not worth acceptance. 7. Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by the apex Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, reported in ( AIR 1978 SC 1807 ), falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. 8. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted by the Apex Court in the case of Savitaben Somabhai Bhatiya v. State of Gujarat and others, reported in (2005)2 SCC 503. 9. This facts is not disputed that the respondent No.1 is legally wedded wife of applicant and respondent No.2 is the son of the couple. The aforesaid position was highlighted by the Apex Court in the case of Savitaben Somabhai Bhatiya v. State of Gujarat and others, reported in (2005)2 SCC 503. 9. This facts is not disputed that the respondent No.1 is legally wedded wife of applicant and respondent No.2 is the son of the couple. Hence, certainly the applicant is duty bound to supply food, clothes and to provide a roof to the respondents. 10. It is pertinent to mention here that Chenabai (DW2) Bhabhi, sister-in-law of the applicant admitted this fact since last five years Manoj never went to bring Sakun Bai, she also of the opinion it is the liability of Manoj to maintain Sakun Bai and son Naval. 11. It was specifically mentioned in the application that the applicant re-married with Sapna, daughter of Suresh Waghmare and having one son also from wedlock. It is pertinent to mention here that this fact is nowhere challenged or denied by the applicant in his reply. 12. Though, Manoj (DW1) and Chenabai (DW2) denied the above suggestions with regard to marriage of the applicant with Sapna and their son, but Manoj (DW1) does not dare to examine said Sapna or her father Suresh Waghmare to rebut this allegation cast upon him. 13. The respondent No.1 Smt. Sakun (PW1) in her statement specifically alleged this fact that applicant Manoj re-married with Sapna Waghmare and having one son also. This statement of Smt. Sakun (PW1) does not challenged by asking a single word during her cross-examination. Same is the position of Vishal (PW3) who also supported the statement of Smt. Sakun (PW1) with regard to second marriage of applicant Manoj with Sapna and their children. 14. In above facts and circumstances, when the factum of second marriage of applicant Manoj with other lady Sapna is proved then the respondent No.1 Sakun is having every just and sufficient ground to live separately. 15. It is the obligation of the husband to maintain wife, father to maintain children and son to maintain parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation: Rajathi v. C. Ganesan [ (1999)6 SCC 326 ]. Means does not signify only visible means, such as real property or definite employment: Basanta vs. Sarat [1982 CrLJ 485]. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation: Rajathi v. C. Ganesan [ (1999)6 SCC 326 ]. Means does not signify only visible means, such as real property or definite employment: Basanta vs. Sarat [1982 CrLJ 485]. An able-bodied person has sufficient means: Kandaswami v. Angammal [ AIR 1960 Mad 348 : 1960 CrLJ 1098 ]. 16. In light of above mentioned legal position, suffice to mentioned that in his reply applicant admitted that his per-day earning is Rs.100/- – Rs.150/- as labour, it goes to show that applicant is having sufficient means of income. 17. On above mentioned facts and circumstances so far as the quantum of interim maintenance amount is concerned, in the present scenario of sky-rocketing prices should be kept in mind at the time of determining the amount of interim maintenance. Learned revisional Court rightly held that the applicant also having sufficient means of income to pay maintenance and, therefore, rightly fixed the maintenance amount. 18. In view of the aforesaid, this application under section 482 of the Code stands dismissed. 19. A copy of this order be sent to the learned Courts below along with the record.