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Madhya Pradesh High Court · body

2017 DIGILAW 1205 (MP)

Dharmendra Sharma v. Prakhar

2017-11-24

G.S.AHLUWALIA

body2017
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 12.7.2017 passed by the Principal Judge, Family Court, Vidisha in MJC No. 174/2014 by which the application filed by the respondent under Section 125 of Cr.P.C. has been allowed and the applicant has been directed to pay Rs. 3,000 per month by way of monthly maintenance. The necessary facts for the disposal of the present application in short are that the respondent is the biological son of the applicant. The applicant was married to Smt. Meenu Sharma, the mother of the respondent, on 29.5.2012 and the respondent was born out of the wedlock. The mother of the respondent is residing separately from the applicant from 22.12.2013. It is undisputed fact that the respondent is having hole in his heart and a part of his heart is also shrinked. It is the case of the respondent that he is having a hole in his heart and his main blood arteries are already blocked and his treatment is also going on in Vidisha and MMS Hospital, Delhi. The monthly expenses of his medicines are Rs. 5,000 and an amount of Rs. 20,00,000 is required for his operation. As the mother was being harassed by the applicant for want of dowry, therefore, she is residing separately along with respondent in her father's house from 22.12.2013. It was further alleged that the applicant is a qualified person having passed MBA and is earning Rs. 10,000 per month. The family of the applicant has 15 Bighas land and his share is to the extent of 10 Bighas and his yearly income from the agricultural land is Rs. 2,00,000. 2. The claim of the respondent was denied by the applicant. It was alleged that the mother of the respondent is working as a Government Teacher and is earning Rs. 20,270 per month by way of salary. The applicant was in a private job, but because of false complaint made by the mother of the respondent, he has lost his job. The applicant has also filed an application under Section 9 of the Hindu Marriage Act, but still she is not ready and willing to stay with him. Treatment of the children is done in AIMS Hospital free of costs. The claim with regard to the expenses on medicines is false. The applicant has also filed an application under Section 9 of the Hindu Marriage Act, but still she is not ready and willing to stay with him. Treatment of the children is done in AIMS Hospital free of costs. The claim with regard to the expenses on medicines is false. The applicant is ready and willing to keep the respondent and his mother along with him. 3. The Trial Court after recording the statements of the witnesses has allowed the application and directed the applicant to pay Rs. 3,000 per month to the respondent till he attains majority. 4. Challenging the findings and the order passed by the Trial Court, it is submitted by the Counsel for the applicant that the father of the applicant is also a heart patient and he is also required to look after his father. The applicant has already lost his job because of the false complaint made by the mother of the respondent. At present the applicant is an unemployed person having no source of income. He is not in a position to pay even a single paisa to the respondent, but he is ready and willing to keep the respondent and his mother along with him. 5. Heard learned Counsel for the applicant on the question of High Court of Madhya Pradesh admission. 6. The fact that the respondent is the biological son of the applicant has not been denied by the applicant. The fact that the respondent is suffering from heart disease has also not been denied by the applicant. It is not the case of the applicant that he is a handicap person or is not an able bodied person. It is well established principle of law that where the husband/father is an able bodied person, then he cannot deny to pay maintenance amount only on the ground that either he is an unemployed person or has a meagre income. 7. The Supreme Court in the case of Shamima Farooqui v. Shahid Khan reported in HI (2015) SLT 703 : 111 (2015) DLT (Crl.) 371 (SC) : (2015) 5 SCC 705 has held as under: "15. 7. The Supreme Court in the case of Shamima Farooqui v. Shahid Khan reported in HI (2015) SLT 703 : 111 (2015) DLT (Crl.) 371 (SC) : (2015) 5 SCC 705 has held as under: "15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7 has held as follows : (SCC p. 12, para 8) "The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.' 16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 , it has been ruled that: (SCC p. 320, para 6) 'Section 125, Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. 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 in Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636 . 17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 18. 17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash, wherein it has been opined thus: (SCC On Line Del para 7) '7. an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.' 19. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance." 8. Thus, it is clear that where the husband/father is an able bodied person having no physical disability, then he cannot make a complaint that he is an unemployed person. The applicant is a well qualified educated person having passed MBA, therefore, he cannot say that he is not in a position to maintain his ailing minor son. Thus, it is clear that where the husband/father is an able bodied person having no physical disability, then he cannot make a complaint that he is an unemployed person. The applicant is a well qualified educated person having passed MBA, therefore, he cannot say that he is not in a position to maintain his ailing minor son. It is true that the son has a duty towards his father, but the unfortunate aspect of the matter is that the father of the applicant and the respondent, who is the son of the applicant, both are suffering from heart disease. Under these circumstances, this Court is of the view that the maintenance amount of Rs. 3,000 awarded by the Trial Court cannot be said to be on a higher side. Accordingly, the order dated 12.7.2017 passed by Principal Judge, Family Court, Vidisha in MJC No. 175/2014 is hereby affirmed. The application fails and is hereby dismissed in limine.