Priya Shailendra Son of Sri Yamuna Prasad v. Kumari Archana Wife of Priya Shailendra
2019-03-01
DEEPAK ROSHAN
body2019
DigiLaw.ai
ORDER : This application has been filed under Section 19(4) of the Family Courts Act against the judgment dated 21.07.2013 passed by the Principal Judge, Family Court, Ranchi in Maintenance Case No.179 of 2008 whereby and where under the petitioner was directed to pay maintenance of Rs.6,000/-per month to the opposite party no.1 and Rs.3,000/-each to the opposite party nos.2 and 3 respectively, total Rs.12,000/ per month. 2. The fact of the case is that the marriage was solemnized between the petitioner and Opposite party no.1 on 03.12.1996 at Patna in accordance with Hindu rites and customs and opposite party nos. 2 and 3 are their minor children. After the marriage, the opposite party no.1 went to her matrimonial home situated at Danapur and in the year 1997 she went to Delhi where the present petitioner was posted as an employee in Provident Fund Office. The opposite party no.1 lived there for one month but she was sent by the petitioner to her matrimonial home at Danapur. The further case of the opposite party no.1 before the learned court was that at the time of marriage, the father of opposite party no.1 had given to the petitioner Rs.2.41 lacs in cash besides other valuable articles and gold ornaments worth Rs.1.00 lac. However, the father of petitioner herein demanded Rs.2 lacs since they were not satisfied by the dowry paid at the time of marriage. It was further stated by the opposite party no.1 that her father could not fulfill the demand therefore she was subjected to physical and mental torture/cruelty. After sometime the petitioner herein was transferred from Delhi to Ranchi where he started living in a rented house. At Ranchi also the opposite party no.1 was subjected to torture due to non-fulfillment of the demand and the petitioner extended threat that he will solemnize second marriage with another lady after divorce. It was further stated by the opposite party no.1 that the petitioner and his parents attempted to kill her but due to medical help her life was saved. Due to regular torture by the petitioner to the opposite party no.1, she informed the higher authorities in the department of petitioner. Finally the petitioner left the opposite party in the month of April, 2007 and did not return.
Due to regular torture by the petitioner to the opposite party no.1, she informed the higher authorities in the department of petitioner. Finally the petitioner left the opposite party in the month of April, 2007 and did not return. In the same month, the opposite party no.1 received notice from court of Principal Judge, Family Court, Patna with respect to matrimonial divorce suit on the ground of adultery. 3. The opposite party no.1 get the said matrimonial suit transferred from Patna to Family Court, Ranchi by the order of the Hon’ble Supreme Court of India. 4. The further case of opposite party before the learned trial court was that opposite party no.2 is student of Loreto Convent at Ranchi and opposite party no.3 is student of Happy Days School at Ranchi. 5. The opposite party further stated before the trial court that the petitioner was earning Rs.20,871/-and he gets rent from his house to the tune of Rs.9,000/- per month. His father is a retired government employee. He gets pension of Rs.8,000/-per month and he is also working as an agent of Sahara India and derives income to the tune of Rs.15,000/-per month. The opposite party no.1 further stated before the court below that she is unable to maintain herself. The opposite party no.1 is incurring Rs.3,500/-per month as house rent at Ranchi besides Electricity bill of Rs.2,200/-and tuition fee of school Rs.1,000/-. 6. The petitioner herein appeared before the learned trial court and filed show-cause. The relationship of the petitioner with the opposite party no.1 has not been denied. The other allegations have been denied. It was further contended by the petitioner herein that the opposite party no.1 has refused to live with him and she did not take care of him. He has denied the demand of dowry. It was alleged by the petitioner before the trial court that opposite party no.1 has been living in adultery as such he had to face humiliation in the society. 7. In nut-shell, the petitioner herein denied the allegations of dowry but admitted the relationship of husband and wife and stressed the ground of adultery against the wife. 8. In the trial court, four witnesses have been examined in support of the case of the opposite parties. Wife herself was P.W.-1, she has stated in her evidence that marriage was solemnized with the opposite party on 03.12.1996.
8. In the trial court, four witnesses have been examined in support of the case of the opposite parties. Wife herself was P.W.-1, she has stated in her evidence that marriage was solemnized with the opposite party on 03.12.1996. Thereafter, she was blessed with two children who are minors. She has further stated in her examination-in-chief which has been filed in form an affidavit that on 30.03.2007 the husband left the house and did never return and in the month of April, 2007 she received the notice of divorce. She has further stated in evidence that the husband was earning Rs.30,000/-per month and he was posted as Upper Division Clerk at Regional Office of Provident Fund at Ranchi. Besides, he derives Rs.9,000/-as house rent from his house. She also stated in her evidence that the father of the husband is also economically well off. In the cross-examination she has stated that she was always assaulted by her husband and her-in-laws and attempt was made to kill her twice by her in-laws family. 9. P.W.2 is a witness on the point of paying rent by the opposite party no.1 to the house owner. P.W.4 was the father of opposite party no.1 who has supported the demand of dowry. He has also admitted that his daughter was admitted for medical treatment in hospital also and in a nut-shell, he has fully supported the case of the wife. 10. The husband was examined in this case who has admitted the marriage. The only allegations of the petitioner was that the opposite party no.1 was leading adulterous life, and when he enquired from her, her behavior became rude and cruel. In his cross-examination he has stated that his father has been residing with his uncle, which clearly goes to show his father is being looked after by his own brother. The petitioner herein has further admitted that he purchased land measuring 4 decimal near BIT Mesra, though he has stated that he had taken loan of Rs.1.5 lacs from his near relatives but he could not produced any document in support thereof. He has also admitted that he lived at several places at Ranchi but he never informed her wife and children. 11. The opposite party witness no.2 has also admitted the marriage. 12.
He has also admitted that he lived at several places at Ranchi but he never informed her wife and children. 11. The opposite party witness no.2 has also admitted the marriage. 12. It has been argued by the petitioner that the order of maintenance passed by the trial court is mechanical and it has not taken into consideration that the opposite party herself left the house and she went to reside at Ranchi so that the petitioner cannot look after his ill parents. 13. The further case of the petitioner before us is that the trial court has failed to take into consideration the entire gamut of fact and order passing maintenance is very harsh and should be set aside. On the other hand the opposite party relied on the order of trial court. 14. At this juncture it is pertinent to mention here that the Act is very clear with respect to maintenance of wife, children and parents. Section 125 reads as under: “125.
On the other hand the opposite party relied on the order of trial court. 14. At this juncture it is pertinent to mention here that the Act is very clear with respect to maintenance of wife, children and parents. Section 125 reads as under: “125. Order for maintenance of wives, children and parents.— (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 the 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: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: [Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application such person.] Explanation.—For the purposes of this Chapter,— (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority; (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
[(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, of so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (4) No wife shall be entitled to receive an allowance [for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 15.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 15. From perusal of the above provisions of Section-125 Cr.P.C it is crystal clear that there are few ingredients which is to be seen while deciding the issue of maintenance of wife. (a) There should be an admitted relationship of husband and wife. (b) The wife is unable to maintain her. (c) The children are unable to maintain themselves and (d) The husband having sufficient means, neglects his wife and refuses to maintain. 16. I have carefully gone through the oral evidence, order impugned and arguments adduced by both the parties. In the instant case, the relationship has been admitted by both the parties. From evidence it is also clear that petitioner neglected his wife and children. The petitioner himself admitted that wife do not work which clearly goes to show that she is unable to maintain herself and children. It is also an admitted fact that while the petitioner was doing job, he was earning Rs.25,000/-thus it is clear that the petitioner is capable to maintain her wife and he has sufficient means looking to the facts and circumstances and the evidences dealt hereinabove. The inherent and fundamental principle behind Section 125 Cr.P.C is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. 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.
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. A nd 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. The instant case squarely comes under these parameters. 17. The learned trial court has dealt the entire issues in detail and seeing the amount of maintenance which has been awarded by the trial court is very very reasonable seeing the present circumstances. 18. In my opinion, there is no illegality whatsoever in the judgment dated 21.07.2013 passed by the learned Principal Judge, Family Court, Ranchi in Maintenance Case No.179 of 2008 whereby and where under the petitioner was directed to pay maintenance of Rs.6,000/-per month to the opposite party no.1 and Rs.3,000/- each to the opposite party nos.2 and 3 respectively, total Rs.12,000/ per month and as such the same does not require any interference. The instant application is devoid of merit and the same is dismissed.