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Madhya Pradesh High Court · body

2018 DIGILAW 642 (MP)

Seema Bai Halwai v. Om Prakash

2018-07-20

ANJULI PALO

body2018
ORDER : ANJULI PALO, J. 1. This petition has been filed by the petitioners under Section 482 of Cr.P.C. to set aside the order dated 12.04.2006 passed by the Third Additional Sessions Judge (Fast Track Court) Sidhi arising out of the order dated 06.10.2005 passed in M.Cr.C.No. 196/2004 by the Court of Judicial Magistrate First Class. 2. Brief facts of the case are that petitioner No.1 and respondent are husband and wife. Petitioner No. 2 is their minor son. It is also not in dispute that the petitioners reside separately from the respondent. Marriage of petitioner No. 1 was solemnised with respondent on 02.02.2001. She was living with the respondent at her matrimonial house. Thereafter, the respondent started demanding motor-cycle and cash amount of Rs. 50,000/- as dowry. His demand increased after the birth of petitioner No. 2 for color television and refrigerator also. Respondent harassed petitioner No. 1 for non-fulfillment of his demand. Ultimately, he departed the petitioners. Thereafter, he filed an application under Section 9 of the Hindu Marriage Act to humiliate petitioner No. 1. An order for restitution of conjugal rights was passed. When the petitioners went to the house of respondent on 05.10.2004, mother of the respondent again demanded dowry and turned her out from their house. The respondent did not want to keep the petitioners with him. The petitioners are unable to maintain themselves. 3. It is alleged that the respondent is running a hotel and earning Rs. 12,000/- per month. Therefore, the petitioner filed an application under Section 125 of Cr.P.C. before the trial Court which was dismissed against petitioner No. 1. However, Rs. 1500/- per month was awarded in favour of petitioner No. 2. 4. Against the order of the Judicial Magistrate First Class, the petitioners as well as the respondent filed revision. Learned revisional Court below has decided both the revisions by a common order and reduced the maintenance allowance of Rs. 1500/- to Rs. 1000/- per month for petitioner No. 2. The revisional Court upheld the order of refusal to grant maintenance to petitioner No. 1. Hence, this revision is preferred by the petitioners. 5. The respondent denied his liability to provide maintenance allowance to the petitioners. He submitted before the Courts below that the petitioner No. 1 wrongly claimed maintenance allowance from him on the false ground. Petitioner No.1 herself is able to earn. She is running a hotel. Hence, this revision is preferred by the petitioners. 5. The respondent denied his liability to provide maintenance allowance to the petitioners. He submitted before the Courts below that the petitioner No. 1 wrongly claimed maintenance allowance from him on the false ground. Petitioner No.1 herself is able to earn. She is running a hotel. She herself is not inclined to reside with the respondent. He is willing to keep his minor son with him and he never demanded any dowry from petitioner No.1. He is unemployed. He has no source of income. Hence, he prayed that the petition filed by the petitioners is liable to be dismissed. 6. The order of learned trial Court was maintained by the lower revisional Court. The Court found that a decree of conjugal right has been passed against petitioner No.1 even though, she was not willing to reside with the respondent to perform her marital duties. Therefore, a false application has been filed by her for maintenance allowance. The revisional Court also found that Rs. 1000 per month was claimed by petitioner No.2 but the trial Court wrongly awarded Rs. 1500/- as maintenance allowance against the respondent which was not claimed by the petitioner No. 2. Therefore, the revisional Court reduced the maintenance allowance from Rs. 1500/- to Rs. 1000/- per month. 7. The aforesaid order was challenged by the petitioners on the ground that the learned court below has failed to consider the oral and documentary evidence, which shows the cruel behaviour of the respondent and his relatives against the petitioner no. 1 in order to keep her out of their house. The Courts below also committed error by not considering sufficient justification to deny for procuring the stay against the decree of restitution of conjugal rights and for staying separately from the respondent. The petitioner No. 1 has no independent source of income. 8. The learned first revisional Court wrongly reduced the maintenance amount for petitioner No. 2 and dismissed the petition for maintenance filed by petitioner No. 1. Hence, the petitioners have prayed to reverse the impugned order and direct the respondent to pay maintenance amount of Rs. 3000/- per month to the petitioners. 9. Heard learned counsel for the petitioner. None appeared for the respondent to argue the matter. Perused the record. 10. Relationship between petitioner No. 2 and the respondent is not disputed. Hence, the petitioners have prayed to reverse the impugned order and direct the respondent to pay maintenance amount of Rs. 3000/- per month to the petitioners. 9. Heard learned counsel for the petitioner. None appeared for the respondent to argue the matter. Perused the record. 10. Relationship between petitioner No. 2 and the respondent is not disputed. At the time of presentation this petition in the year 2006, his age was about three years. There is no bar for the Court to award appropriate allowance exceeding from the prayer. 11. Looking to the necessity of daily needs, medicines, education, etc. allowance of Rs. 1,000/- per month is on the lower side and not adequate to fulfill the requirement of a minor boy. Hence, this Court finds that the revisional Court wrongly reduced the maintenance allowance for petitioner No. 2. 12. With regard to petitioner No. 1, conduct of the respondent shows that he was not willing to reside with petitioner No. 1. After passing the decree under Section 9 of the Hindu Marriage Act, he has not inclined to live together with petitioner No. 1. She categorically deposed that she went to her matrimonial house after informing the police but the respondent and his mother refuse her to enter in their house. Such report also gave by the petitioner No. 1 to the police and with this regard her testimony is duly corroborated by her relatives. It indicates that the respondent malafidely instituted a case under Section 9 of the Hindu Marriage Act against the petitioner No. 1 to avoid her and save himself from the liability to maintain her. During the period when the petitioner No. 1. stayed at her fathers place, the husband/respondent did not offer to send her any maintenance allowance for her and the minor son. These circumstances are sufficient to lead to the conclusion that there was neglect and refusal to maintain on behalf of the husband and wife could justify her living at her fathers place. 13. Maintenance to the wife is her right. It cannot be denied merely because the husband obtained a decree fro restitution of conjugal rights against the wife. The onus is on the husband or father to show the means after being proved by the wife that husband has sufficient means to pay maintenance. 13. Maintenance to the wife is her right. It cannot be denied merely because the husband obtained a decree fro restitution of conjugal rights against the wife. The onus is on the husband or father to show the means after being proved by the wife that husband has sufficient means to pay maintenance. Meager income or no income of husband is no ground for husbands inability to pay maintenance. 14. "Having sufficient means" does not signify only visible means. If one is healthy and able bodied. He must be held to have means to support his wife and it has to be inferred that he has the means to pay the maintenance. In case of Durga Singh Lodhi Vs. Prembai 1990 Cr.LJ 2065, the Divisional Bench of this Court held that - "Mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance. 15. Hence, this Court finds the learned trial Court wrongly dismiss the claim of the petitioner under Section 125 of the Cr.P.C. The respondent is the husband of petitioner No. 1. He is healthy and fit to do any work to earn money and maintain his wife and minor son. Even though, there is a hotel jointly conducted by the respondent and his other family members. The petitioner No. 1 is also entitled to get maintenance allowance from the respondent as per his status. Further, a father cannot refuse to maintain his son because he was living with his mother. If he wants custody, he must enforce his right in a civil court or even then respondent / father merely filed an application under Guardian and Wards Act for the custody of minor child is not sufficient to show that he was ready discharge his duty to maintain his son. 16. Thus, setting aside the impugned order dated 12.04.2006 passed by the revisional Court under Section 125 of Cr.PC. this Court awards Rs. 2,500/- per month in favour of petitioner No. 1 and Rs. 3,000/- per month in favour of petitioner No. 2 as maintenance allowance which is to be paid by the respondent from the date of order of the trial Court i.e. 06.10.2005. 17. With the aforesaid, the petition stands partly allowed and disposed of.