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2018 DIGILAW 668 (MP)

Surendra Jhariya v. Sonal Jhariya

2018-08-01

VANDANA KASREKAR

body2018
ORDER : VANDANA KASREKAR, J. 1. The applicant has filed this revision challenging the order dated 20.12.2016 passed by the Principal Judge Family Court, Mandla in MJC No.286/2015 thereby allowing the application preferred by the respondents under section 125 of the Cr.P.C., 1973 2. The applicant as well as respondent no.1 entered into marriage on 15.06.2002. In the year 2015, a dispute was arose between the parties, when the applicant was found the respondent no.1 with one Anil Sahu at night in the respondent no.1 house. On the next day, the Panchayat was constituted and thereafter, respondent's no.1 went to her parental house with own will. Thereafter, respondent no.1 has filed a false criminal case against the applicant and his parents in which the applicant and his parents were acquitted vide judgment dated 26.07.2016. The respondent thereafter filed an application under the Protection of Women From Domestic Violence Act, 2005 which was also dismissed vide order dated 30.11.2015. Respondent no.1 again thereafter filed an application under section 125 of the Cr.P.C, 1973 before the trial Court. The trial Court after recording the evidence of both the parties and after hearing them has passed an order dated 20.12.2016 thereby allowing the application preferred by the respondents. Being aggrieved by that order, the applicant has filed this criminal revision. 3. Learned counsel for the applicant submits that the family Court below has failed to consider that the respondent no.1 is living separately from the applicant without any sufficient reasons and, therefore, she is not entitled to get the maintenance. He further submits that the respondent no.1 is working on the post of Aganwadi Worker and is getting a fixed salary per month. He further submits that the respondent no.1 is in illicit relation with one Anil Sahu and due to the said reason she is not interested to live with the applicant. He further submits that the applicant is a B.P.L Card Holder unemployed and there is no any source of income, therefore, the applicant is unable to give maintenance to the respondents. 4. Respondent no.1 supports the order passed by the trial Court and submits that the family Court has not committed any error in passing the order. The amount awarded by the family Court is just and proper. The family Court has passed the impugned order without application of mind, therefore, the same order is not sustainable. 5. 4. Respondent no.1 supports the order passed by the trial Court and submits that the family Court has not committed any error in passing the order. The amount awarded by the family Court is just and proper. The family Court has passed the impugned order without application of mind, therefore, the same order is not sustainable. 5. Heard learned counsel for the parties and perused the record. In the present case, respondent no.1 has filed an application under section 125 of the Cr.P.C., 1973 stating that the applicant is not maintaining her and her children. As per respondent no.1, the applicant and his family members were started harassing the respondent physically and mentally, therefore, she, filed an application under section 125 of the Cr.P.C., 1973 The said application was allowed by the family Court, Mandla on 20.12.2016. Being aggrieved by that order, the present revision has been filed. 6. From perusal of the record, it reveals that while deciding the application under section 125 of the Cr.P.C., 1973 the family Court has considered three points:- Firstly; whether, the respondent is entitled to live separately from the applicant, Secondly; whether, respondent no.1 is living in adultery, therefore, she is not entitled to get the maintenance and Thirdly; whether, the maintenance awarded by the family Court is on higher side. 7. So far as, the first ground is concerned. From examination in chief of the applicant it appears that the applicant and his family members have physically assaulted the respondent for dowry and no provision has been made for maintenance of her and her children. 8. The applicant in his examination in chief in para 3 has stated that the respondent no.1 without giving any information went to her parental house and he found respondent no.1 with one Anil Sahu, but no pleadings to that effect has been made in the written statement. Thus, the applicant in his statement has stated that the fact that the applicant is having is in relation with Anil Sahu has not stated to the advocate at the time of filing written statement. He failed to give any reason for the same. Thus, it appears that the same statement made by the applicant is after thought. In such circumstances, the Court has found that there are sufficient reasons for respondent no.1 for not residing with the applicant. 9. He failed to give any reason for the same. Thus, it appears that the same statement made by the applicant is after thought. In such circumstances, the Court has found that there are sufficient reasons for respondent no.1 for not residing with the applicant. 9. The second ground regarding, whether the respondent no.1 is residing separately due to sufficient reason is concerned. The brother of respondent no.1 in his statement has admitted the fact that the respondent no.1 has registered a case under Section 498 and 323 of the IPC against the applicant and his relatives. In the said case, the applicant and his family members are already acquitted. However, as the respondent no.1 from the beginning has stated that the applicant and his family members have harassed her, therefore, there are sufficient grounds for the respondent no.1 to live separately with the applicant. 10. So far as, income of the applicant is concerned. Respondent no.1 in his statement has stated that the applicant is having a flour mill and also having an agriculture land but no documents have been filed by the non-applicant no.1 to prove the same. The father of the applicant in his cross-examination has admitted that the applicant is having a 9 Are of land. so far as, income of respondent no.1 is concerned, the applicant in his statement has stated that the non-applicant no.1 is earning Rs. 3500 per month towards salary, as she is working on the post of Anganwadi Assistant, however, no such documents were filed by the applicant also. 11. Thus on the basis of the oral evidence, the family Court has awarded the amount of Rs. 2,000/- per month to respondent no.1 and Rs. 2000/- each to respondents no. 2 and 3. The amount has been paid from the date of passing of this order. The Apex Court in the case of Shamima Farooqui v. Shahid Khan reported in AIR 2015 SC 2025 has held that even though wife is educated and she is not earning then the husband is bound to maintain her. In para 15 of the said judgment, the Apex Court has held that it is 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. 12. In para 15 of the said judgment, the Apex Court has held that it is 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. 12. In light of the aforesaid observations made by the Hon'ble Apex Court judgment in the case of Shamima Farooqui (supra), this revision is dismissed without any order as to costs.