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2017 DIGILAW 1256 (MP)

Vinesh Singh v. Neha Singh

2017-12-12

VANDANA KASREKAR

body2017
ORDER : 1. The applicant has filed this revision against the order dated 18.08.2017 passed by Second Additional Principal Judge, Family Court, Bhopal in M.J.C. No.65/2015, whereby the application under Section 125 of the Code of Criminal Procedure preferred by the respondents has been allowed and awarded the maintenance of Rs.7,000/-and Rs.3,000/-to respondent No.1 and respondent No.2 respectively. 2. The brief facts of the case are that the marriage between the applicant and the respondent No.1 was solemnized on 27.02.2009. Respondent No.2 is a girl child born out of said wedlock. After marriage, the applicant and respondent No.1 lived together for 9 years in a joint family. The respondent No.1 found it difficult to accept the applicant and his family values and she was not ready to live in joint family and pressurised the applicant to live separately. In the year 2010, the applicant was diagnosed with ITPC Convulsion Disorder caused due to a benign cyst in his brain. The said cyst is inoperable due to low blood platelets. Thereafter, respondent No.1 called her parents and left the applicant's house on 27.05.2013. The respondent No.1 filed a complaint in a public hearing against the applicant and his family members and took respondent No.2 with her. In order to save his marriage, the applicant succumbed to respondents pressure and left his parents home and started living separately with the respondents. The respondent No.1 was an absent spouse and did not adhere to the role and responsibilities as a wife. The respondent No.1 used to be busy on her phone all the time. The respondent No.1 treated the applicant in a very inhuman manner. For the sake of saving his matrimonial ties and for the sake of his young daughter, the applicant filed an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The respondent No.1 filed an application under Section 125 of the Code of Criminal Procedure for maintenance for herself and her daughter to the tune of Rs.30,000/-per month. The applicant filed the reply to the said application under Section 125 of the Code of Criminal Procedure and refuted the allegations made therein. It is mentioned that the applicant is not earning any amount as he is suffering from ITPC Convulsion Disorder caused due to a benign cyst and all his expenses were borne by his parents. The applicant filed the reply to the said application under Section 125 of the Code of Criminal Procedure and refuted the allegations made therein. It is mentioned that the applicant is not earning any amount as he is suffering from ITPC Convulsion Disorder caused due to a benign cyst and all his expenses were borne by his parents. The family Court after recording the evidence has passed the order dated 18.08.2017, thereby partly allowing the application under Section 125 of the Code of Criminal Procedure. Being aggrieved by that order, the applicant has filed the present revision. 3. Learned counsel for the applicant submits that the impugned order passed by the Family Court is on higher side. It is submitted that the family Court while passing the order has not considered that the applicant is suffering from ITPC Convulsion Disorder and he is not earning and totally dependant on his parents. It is further submitted that the respondents have not adduced any evidence with regard to the proof of income, hence no maintenance would have been granted. It is further submitted that the family Court has failed to appreciate that the documents Ex. D/1 to D/4 goes to show that he has gifted the said properties owing to financial distress as he was unable to meet the medical expenses of his disease. It is further submitted that the disease was diagnosed in the year 2010 and since then, he has been continuously taking medical treatment. It is further submitted that the respondent No.1 is a educated lady and is earning well to sustain herself. It is also submitted that the family Court has failed to prove that the respondent No.1 is living separately without any sufficient cause and therefore, is not entitled to get any maintenance. 4. The respondents supports the order passed by the Family Court and submits that the amount of maintenance awarded by the Family Court is just and proper looking to the income of the applicant. 5. I have heard learned counsel for the parties and perused the record as well as the order passed by the Family Court. On the basis of the evidence produced by the parties, it appears that the applicant is continuously harassing the respondent No.1. The respondent No.1 has also lodged an FIR against the applicant on 11.02.2014 at Police Station Piplani. I have heard learned counsel for the parties and perused the record as well as the order passed by the Family Court. On the basis of the evidence produced by the parties, it appears that the applicant is continuously harassing the respondent No.1. The respondent No.1 has also lodged an FIR against the applicant on 11.02.2014 at Police Station Piplani. The applicant has left the respondent No.1 without any reason. The respondent No.1 has further stated that she has never left the company of the applicant on the contrary it is the applicant, who left her. The applicant has also filed RCS No.515 A/2016, which was decided on 18.01.2016, wherein it has been held that applicant has failed to proved that the respondent No.1 is residing separately without any sufficient cause. The respondent No.1 has also filed an application under Domestic Violence Act, which was decided in favour of the respondent No.1. The applicant has not rebutted the evidence produced by the respondent No.1. Thus, on the basis of the evidence, the Family Court has held that there was sufficient reason for the respondent No.1 to reside separately from the applicant. Thus, I do not find any reason to interfere in the said findings. So far as income of the applicant is concerned, the respondent No.1 in her statement has stated that at the time of marriage as well as today itself, the applicant is doing business of supplying building material, from which he is earning Rs.50,000/-per month. It is further submitted that the applicant is a owner of the irrigated land of 3 acres situated at Gudawar, Raisen, truck, tractor and trolley registered in the name of applicant and in support of her statement, she has filed copies of Khasra entries Ex.P/1. Kishtaband Khatoni Ex.P/2 and copy of registration of truck and tractor and trolley in favour of the applicant is at Ex.P/4 and Ex.P/5. The applicant in his statement has stated that all the ancestral property which has been given to him has been expended in his medical treatment and at present his father is doing his medical treatment. It is further submitted that for his treatment, he has sold plot vide Ex.D/1 as well as truck vide Ex. D/2 and agricultural land was sold by him vide Ex.D/4. It is further submitted that he is not earning anything at present. It is further submitted that for his treatment, he has sold plot vide Ex.D/1 as well as truck vide Ex. D/2 and agricultural land was sold by him vide Ex.D/4. It is further submitted that he is not earning anything at present. In cross-examination, the applicant has admitted that he has relinquished all his rights in favour of his brother Hotamsingh and sold the truck in favour of Mangilal Banjare and dumper in favour of Diwansingh and it is stated that truck, dumper and land has been sold by him before filing of application for maintenance by the respondent No.1. It is further submitted that he has received an amount of Rs.2 lakhs for relinquishment of his rights and Rs.50,000/-towards sale of truck, Rs.2 lakhs towards sale of dumper and Rs. 5 lakhs towards sale of agricultural land and he has done his treatment out of the said amount. However, the respondent No.1 submits that bill Ex. P/10 shows that the applicant is still doing business of supplying building material. After perusal of the documents Ex.D/1 Relinquishment Deed, Ex. D/2 Registration of truck and registration of tractor and Ex.D/4 Gift Deed, it appears that all the documents are after filing of application by the respondent No.1 under Section 125 of the Code of Criminal Procedure. It also appears that Ex.D/1, D/2 and D/4 does not mention anything about necessity of money by the applicant for his treatment and all those documents are executed after filing of the application under Section 125 of the Code of Criminal Procedure by the respondent No.1 and are in favour of his brothers. 6. On the basis of over all evidence, the Family Court has given a conclusion that all the aforesaid properties have been disposed of by the applicant only to defeat the claim of respondent No.1 for maintenance. Thus, in the light of oral evidence as well as documentary evidence available on record, I do not find any reason to interfere in the order passed by the family Court. Accordingly, the revision is dismissed with no order as to costs. ORDER : Post it for : 12.12.2017.