Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 739 (ALL)

SUNITA AGARWAL v. STATE OF U. P.

2017-03-09

AMAR SINGH CHAUHAN

body2017
JUDGMENT : Hon'ble Amar Singh Chauhan, J. This criminal revision has been preferred against the judgment and order dated 03.05.2003 passed by Shri Heera Lal Kardam, Judge Family Court, Jhansi in Case No. 175 of 2000 (Smt. Sunita Agarwal vs. Arvind Agarwal), under section 125 Cr.P.C., Police Station-Kotwali, District-Jhansi whereby the application of the revisionist-applicant Smt. Sunita Agarwal moved under section 125 Cr.P.C. for maintenance, was rejected. The facts which are requisite to be stated for adjudication of this revision are that an application under section 125 Cr.P.C. was moved by Smt. Sunita Agarwal stating therein that her marriage was solemnized with opposite party no. 2 Arvind Agarwal as per Hindu rites and rituals on 08.03.2000, and sufficient dowry was given in the marriage. But the opposite party no. 2 and her-in-laws were not satisfied with the dowry and used to torture her physically and mentally by raising demand of either motorcycle or Rs. 50,000 /- as additional dowry. At least, she was ousted also from the house of her husband. The opposite party no. 2 having sufficient means as he is doing business of jewellery and partner in the Varsha Jewellers and earns Rs. 15,000 /- per month whereas applicant-revisionist is unable to maintain herself. The opposite party no. 2 stated in the written statement that applicant-revisionist is patient of incurable eye disease and retina of the eye is not in working condition. The opposite party no. 2 was kept in the dark and by playing fraud, the marriage was performed. She cannot even mark what time is striking in the clock. After hearing the parties learned Principal Family Judge and evaluating the evidence comes to the conclusion that applicant-revisionist is living separately without sufficient cause and, therefore, rejected the application. Feeling aggrieved, the applicant came up in this revision. Despite the sufficient service, opposite party no. 2 neither turned up nor filed any counter affidavit. The applicant-revisionist was also not present at the time of hearing whereas the case was flashing as peremptorily. I take up the case for disposal on merit. Heard learned Additional Government Advocate and perused the material on record. It is stated in the revision memo that there is sufficient evidence against the opposite party no. 2 for neglecting and refusing the applicant-revisionist to maintain her, even then the application of the applicant-revisionist has been dismissed in a mechanical manner. Heard learned Additional Government Advocate and perused the material on record. It is stated in the revision memo that there is sufficient evidence against the opposite party no. 2 for neglecting and refusing the applicant-revisionist to maintain her, even then the application of the applicant-revisionist has been dismissed in a mechanical manner. It has also been stated that the applicant-revisionist was not living with opposite party no. 2 due to her own will when the evidence was adduced before the Judge Family Court, Jhansi that the opposite party no. 2 has filed a suit No. 142 of 2000 for desolution of marriage, as such it cannot be said that the applicant-revisionist left away the company of opposite party no. 2. In this revision, the main point of determination is that whether the opposite party no. 2 despite having means neglect or refuse to maintain his wife. More than there is sufficient reasons before the applicant-revisionist to live separate from her husband. Whether the applicant-revisionist being patient of incurable eye disease would not be entitled to maintenance? Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.: Order for maintenance of wives, children and parents 125. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child whether married or not unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct." From perusal of the aforesaid provisions, it is clear that an order under section 125 Cr.P.C. can be passed, if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife. Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The Court held as under: "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 Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within 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 ." A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.. In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.. In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under: "A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar." After going through the record, it is clear that applicant-revisionist has been ousted from the house of her husband on being harrased and tortured on the demand of dowry i.e. either motorcycle or Rs. 50,000 /-. No evidence has been given by opposite party no. 2 that the eye disease is incurable. Beside this, even a single penny has not been given by the opposite party no. 2 in lieu of maintenance and she was ousted without any sufficient ground. Almost no wife is supposed to leave the house of the husband without any reason. Wife's right to claim maintenance can be denied in the circumstances only provided under section 125 (4) Cr.P.C.. The Hon'ble Supreme Court in Laxmi Bai Patel vs. Shyam Kumar Patel 2002 (44) ACC 1102 SC has held as under: "To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under sub-section (4) of the said section." Principle is that when prima facie marriage is established, maintenance should be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The object is to achieve social purpose and to prevent vagrancy and destitute. The applicant-revisionist is trying to get maintenance since 24.07.2000 through this application but not even a single penny in lieu of maintenance has been received from her husband. The proceeding under section 125 (4) Cr.P.C. provides a speedy remedy for supply of food, clothing and shelter to the deserted wife whereas the opposite party no. 2 has failed to establish that applicant-revisionist without any sufficient reason refused to live with him. In view of what has been indicated above, the impugned order passed by the Judge, Family Court, Jhansi is not justified. Therefore, the impugned order is not liable to be sustained. The revision is allowed. The impugned order, passed by Shri Heera Lal Kardam, Judge Family Court, Jhansi in Case No. 175 of 2000 (Smt. Sunita Agarwal vs. Arvind Agarwal) is hereby set aside and the matter is remanded back to the court concerned for decision afresh expeditiously, preferably within three months. Office is directed to communicate this order for necessary compliance.