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2019 DIGILAW 597 (UTT)

Rupali Chaturvedi v. Deepak Chaturvedi

2019-12-19

SHARAD KUMAR SHARMA

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JUDGMENT : Sharad Kumar Sharma, J. The present criminal revision has been preferred by the revisionist (wife) claiming for an enhancement of the maintenance as determined by the Principal Judge, Family Court, District Udham Singh Nagar, whereby, in the proceedings which was registered as Criminal Case No. 121 of 2012 Smt. Rupali Chaturvedi vs. Shri Deepak Chaturvedi' the Family Court, has determined the maintenance payable to the revisionist (wife) at the rate of Rs. 3,000/- per month. Being dissatisfied with aforesaid determination she has filed the present revision praying for an enhancement of the maintenance. 2. The brief facts, which have emerged for consideration before this Court, is that, it is an admitted fact inter se between the parties that the matrimony amongst them was solemnized in accordance with the Hindu rites and rituals amongst the parties to the present revision, on 24.01.2008 and as a consequence thereto they continued to discharge their matrimonial obligations as socially recognized amongst one another. After the solemnization of marriage there had been certain dispute and misunderstandings, which has arisen amongst themselves and there was an allegation leveled by the revisionist as against respondent husband that she was maltreated by the in-laws and her husband and often she was threatened by the inlaws and even at times she was assaulted also under the pretext that in case if she doesn't bring in sufficient amount of dowry, as it was alleged to have been demanded by the respondent no. 1 as well as the other in-laws of the revisionist, she was maltreated, consequently resulting into posing difficulty to her in dispensing with the matrimonial responsibilities attached to her as a consequence of the marriage, which has been solemnized between them on 24.01.2008. 3. Faced with the aforesaid situation, the revisionist (wife) had instituted the proceedings under Section 125 of Cr.P.C. by filing the same on 21.05.2012 before the Principal Judge, Family Court, Udham Singh Nagar, Camp Kashipur. 3. Faced with the aforesaid situation, the revisionist (wife) had instituted the proceedings under Section 125 of Cr.P.C. by filing the same on 21.05.2012 before the Principal Judge, Family Court, Udham Singh Nagar, Camp Kashipur. In the proceedings thus filed by her apart from the fact that describing the matrimonial dispute and the manner in which it has been arrived at and also with regards to the pleading to the effect that there had been a certain dispute on account of incident of physical assault, which has occurred on 21.07.2010 and 22.07.2010, she has contended that the in-laws of the revisionist have also misbehaved with the parents of the revisionist when they had visited her parents house, but anyway all these altercations of physical assault are not relevant for the purposes to consider the application for determination of the maintenance under Section 125 of Cr.P.C., which exclusively depends upon failure to maintain and income accruing to the spouse and inability of the spouse to maintain herself or himself. 4. As per the parameters provided under Section 125 of Cr.P.C. what would be relevant to consider is as to what would be an appropriate maintenance, which has to be payable, it would be the proportionate amount accruing to the husband as an income as against which the maintenance amount has to be determined by the courts. The revisionist in her application under Section 125 of Cr.P.C. particularly as pleaded in paragraph 11 she has made a pleading that the respondent (husband) has got a transport business and out of that he is having an income of about Rs. 50,000/- per month and thus she has claimed for that she may be paid maintenance at the rate of Rs. 10,000/- per month. 5. On an objection being filed by the respondent (husband), most of the pleading with regards to the matrimony was admitted, though the story about the physical assault and other atrocities, which has been mentioned in the application under Section 125 of Cr.P.C., was denied by respondent/husband. 10,000/- per month. 5. On an objection being filed by the respondent (husband), most of the pleading with regards to the matrimony was admitted, though the story about the physical assault and other atrocities, which has been mentioned in the application under Section 125 of Cr.P.C., was denied by respondent/husband. What would be more relevant for the purposes of present application under section 125 of Cr.P.C. is that in the response submitted by the respondent (husband) to the income as projected by the revisionist in her paragraph 11, he has denied and submitted that he is no more engaged in the transport business, but rather he has pleaded that he is unemployed and he is in financial crisis having no source of earning with him, and it is very difficult for him to maintain himself and what to say about maintaining the revisionist. 6. He further took a plea that rather the revisionist in fact is not in need of awarding any maintenance because she is already having income by taking tuitions and out of the said engagement she has got sufficient income with her. Hence, she is to be excluded for grant of maintenance in view of the provisions contained under subsection (4) of Section 125 Cr.P.C. 7. Based upon the rival contentions, the learned Family Court has decided the application under Section 125 of Cr.P.C. by the impugned order dated 12.04.2016 and consequently, has determined the maintenance payable to her at the rate of Rs. 3,000/- per month, which has been directed to be made payable by tenth of each month by the respondent (husband). 8. During the course of argument of the present criminal revision, one additional aspect, which was brought on record and to the knowledge of the court was that the respondent (husband) has initiated the proceedings for dissolution of marriage before the District Judge, Bharatpur, Rajasthan, by way of filing a petition under Section 13 of Hindu Marriage Act, being Case No. 475 of 2014 Deepak Chaturvedi vs. Rupali'. The said proceeding as instituted by the husband before the District Judge, Bharatpur, Rajasthan. The said proceeding as instituted by the husband before the District Judge, Bharatpur, Rajasthan. The same was ultimately transferred to the competent court at Udham Singh Nagar by the orders of Hon'ble Apex Court and after the revival of the proceedings on its transfer the matter was taken up before the Family Court, Udham Singh Nagar, and it is an admitted fact inter se between the parties that after its transfer the proceedings under Section 13 of the Hindu Marriage Act, which was initiated by the respondent (husband), the same was dismissed for want of prosecution on 24.07.2017. The said order of dismissal of the proceedings under Section 13 will amount to that matrimony, which was solemnized between the revisionist and respondent (husband) on 24.01.2008 stands revived and is existing socially and legally in the eyes of law and, in such an eventuality, where there is a subsisting matrimony or even after the dissolution of marriage even thereafter if either of the party has not remarried he or she will still continue to be entitled to claim the maintenance by invoking the provisions contained under Section 125 of Cr.P.C. 9. In the instant case since the proceedings under Section 13 instituted by the husband has already been dismissed that in itself will entitle the revisionist to be awarded with the satisfactory maintenance in order to meet her bare necessities of subsistence. In order to support her contention, the revisionist (wife) has submitted that the respondent, who is engaged in a transport business, is an owner of the two buses and the said two buses are being plied by him for the purposes of accruing income to the respondent no. 2. On the contrary, in order to shy away from his responsibilities of paying maintenance, the respondent has come up with the case that the said buses, which are pleaded by wife to be belonging to the respondent (husband), are no more under his ownership and both the buses bearing Registration Nos. R.J. 11 P. 0281 and P.V. 07/E 5495, they have been disposed of and after the disposal of the buses he has got no source of earning and as such the income projected by the revisionist (wife) to be accruing to respondent/husband at the rate of Rs. 50,000/- is no more available to him. R.J. 11 P. 0281 and P.V. 07/E 5495, they have been disposed of and after the disposal of the buses he has got no source of earning and as such the income projected by the revisionist (wife) to be accruing to respondent/husband at the rate of Rs. 50,000/- is no more available to him. Rather in the affidavit, which was filed by him in the proceedings before the court below by way of Paper No. 40ga/5, he has brought up that story that the aforesaid two buses has been sold to the scrap dealer and, hence, he is no more in possession of it. Hence, the income of the husband cannot be believed with. In order to take another defense to deny the maintenance, he has submitted that the wife is already teaching in a private school and, hence, she is having a sufficient income of Rs. 20,000/- per month. Hence, too she will be disentitled to claim the maintenance under sub-section (4) of Section 125. 10. After having heard the learned counsel for the parties at length, the wife's case for claim of maintenance under Section 125 of Cr.P.C. is that the respondent (husband) was the owner of the buses and he is having an income of about Rs. 50,000/- per month from the said transport business. There are two elements, which are required to be considered in the response submitted by respondent/husband. The ownership of the bus and the income which was accruing Rs. 50,000/- would be a fact, which remains undenied by the respondent/husband. The denial from the husband has come only from the perspective that since the buses has been sold to the scrap dealer, he is not having any income as buses are no more operational. The ownership of the bus and the income which was accruing Rs. 50,000/- would be a fact, which remains undenied by the respondent/husband. The denial from the husband has come only from the perspective that since the buses has been sold to the scrap dealer, he is not having any income as buses are no more operational. The said plea of buses having been sold to the scrap dealer is not acceptable by this Court for the reason being that any owner of a motor vehicle, which is registered under the Motor Vehicle Act in view of its provisions as contained under Section 50 it mandates that as soon as its ownership is transferred or the vehicle is sold in any manner whatsoever, the owner of the vehicle simultaneously owes a responsibility to inform the RTO about the said transfer so that it may be validly recorded in the motor vehicle records of ownerships maintained by the motor vehicle department to show and record the fact of transfer. Since the said fact is not established or proved on record that there was a valid sale made by respondent/husband the presumption in the light of provisions contained under Section 50 of Motor Vehicle Act would go to show that the revisionist still owes the ownership of the vehicle and is engaged in transport business and since the quantum of income pleaded by wife, was a fact, which was not denied the presumption would be that he has an income of about Rs. 50,000/- as pleaded by the revisionist (wife). The second reason for denial of maintenance was on the ground that the wife was earning and was engaged in a private school, there is no evidence adduced by husband on record of the said fact, before the court below to show that the wife was actually engaged and was having an income of Rs. 20,000/- per month. The burden to prove the same was to be discharged by him as per Section 103 of the Evidence Act, there is nothing on record to the contrary. 11. In the aforesaid eventualities, this Court is of the view that:- (i) having held that the fact of Rs. 20,000/- per month. The burden to prove the same was to be discharged by him as per Section 103 of the Evidence Act, there is nothing on record to the contrary. 11. In the aforesaid eventualities, this Court is of the view that:- (i) having held that the fact of Rs. 50,000/- was accruing as an income to the respondent/husband is a fact, which is not denied by the respondent/husband and, (ii) the fact of sale of buses to the scrap dealer in order to deny the income and consequent maintenance when the fact of sale of the buses runs contrary to the statutory provisions, it cannot be presumed that the sale has been actually carried in accordance with law, hence, it will be inferred that he is still engaged in a profitable business of transport. (iii) It is also a fact established by evidence that the wife is not profitably engaged in any private school. (iv) as far as the argument of respondent/husband pertaining to the proceedings drawn by him for dissolution of marriage by way of institution of the proceedings under Section 13 of the Hindu Marriage Act by way of Case No. 475 of 2014, admittedly as per the order-sheet which has been produced before this Court and the fact, which also stands proved and admitted by the respondent/husband that the said proceedings under Section 13 of Hindu Marriage Act initiated by respondent/husband has been dismissed for want of prosecution on 24.07.2017 and, hence, the presumption is that the marriage between the revisionist and respondent/husband is still legally existing and lastly, (v) if the income is a fact, which is not disputed, if the sale of the buses is not a sale as per law, which is in fact established by evidence on record if the fact of failure of the proceedings under Section 13 is yet again a fact, which is established on record, then this Court is of the view that the wife is entitled to avail the maintenance from her husband and the husband owes a responsibility to maintain his wife because husband have never argued or pleaded the restrictions in grant of maintenance as per Section 125(4) of Cr.P.C. 12. In the present case, the wife has claimed the maintenance of Rs. 10,000/- per month in the application, which was filed by her as back as on 21.05.2012. In the present case, the wife has claimed the maintenance of Rs. 10,000/- per month in the application, which was filed by her as back as on 21.05.2012. The said amount, which was determined and which was directed to be made payable to her was at the rate of Rs. 3,000/- per month by an order dated 12.04.2016 impugned in the present revision. 13. Ever since the institution of the proceedings in 2012 under Section 125 of Cr.P.C. till its adjudication by the impugned order on 12.04.2016, sufficient time period has lapsed and also considering the income accruing to the husband and also considering the fact that with the passage of time the standard of living has also been on an increasing trend quite obviously expenditure which is likely to be incurred by a separated wife would also be on an increasing trend and atleast amount of maintenance, which a wife is entitled to receive as per the pronouncement rendered by the Hon'ble Apex Court, it is atleast 1/3rd of the total amount accruing to the husband so as to commensurate it with the same standard and status of living which the wife would have otherwise enjoyed had there been no dispute. 14. In such an eventuality, the amount of maintenance since it was claimed by the wife to be at the rate of Rs. 10,000/- per month only, the concept of determining maintenance at the rate of 1/3rd of the total income accruing to the husband cannot be made as a foundation for deciding the present criminal revision. Hence, this revision is allowed only to the extent that the judgment of maintenance as rendered by the court below on 12.04.2016, is modified to the extent that the respondent/husband is directed to remit an amount of maintenance at the rate of Rs. 10,000/- per month as a maintenance to the revisionist (wife), which is directed to be made payable by 10th of each month from today. The amount thus enhanced to be paid is made enforceable from the date of the today's judgment. 15. However, having determined the maintenance at the rate of Rs. 10,000/- per month, it will not preclude the revisionist (wife) to file an appropriate application as and when advised under Section 127 for an appropriate enhancement. 16. Subject to the above observations, the criminal revision partly succeeds. 15. However, having determined the maintenance at the rate of Rs. 10,000/- per month, it will not preclude the revisionist (wife) to file an appropriate application as and when advised under Section 127 for an appropriate enhancement. 16. Subject to the above observations, the criminal revision partly succeeds. The impugned order under challenge is modified to the said extent.