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2020 DIGILAW 847 (JHR)

Pankaj Sab v. Minu Devi

2020-09-04

SHREE CHANDRASHEKHAR

body2020
ORDER : Mrs. Nirupama, the learned counsel appears for the petitioner and Mr. Manoj Kumar No.4, the learned counsel appears for O.P. No.2. 2. The petitioner is aggrieved of the order dated 26-7-2016 by which he has been directed to pay Rs. 4,000/- per month to his wife and Rs. 2,000/- per month to the minor daughter for their monthly allowance from the date of the application. 3. The Original Maintenance Petition No. 74 of 2013 was instituted on the application filed by the wife and the minor daughter of the petitioner seeking maintenance of Rs.10,000/- per month for the wife and Rs.5,000/- per month for the minor daughter. 4. In a proceeding under Section 125 of the Code of Criminal Procedure, a husband has to show by leading evidence that he does not have sufficient means to maintain his wife [refer Rajathi v. C.Ganesan, reported in (1999) 6 SCC 326 ], however, a wife who asserts that she is unable to maintain herself is not required to establish that she is living in penury. In Chaturbhuj v. Sita Bai, reported in (2008) 1 SCC 316, the Hon'ble Supreme Court has held that the expression "unable to maintain herself' does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 of the Code of Criminal Procedure. In Rajathi (supra), the Hon'ble Supreme Court has observed that the statement of a wife that she was unable to maintain herself would be enough and it would be for the husband to prove otherwise. 5. The marriage between the petitioner and O.P. No.1 was solemnized on 29.01.2007 and a girl child was born from the wedlock in the year 2008. The wife of the petitioner has stated that after birth of the female child suddenly behaviour of her in-laws changed towards her and the petitioner and his family members started teasing and taunting her and they started demanding Rs.50,000/- and one Hero-Honda motorcycle and in connection thereto subjected her to neglect, torture and cruelty. A criminal case vide P.C.R. Case No. 366 of 2001 was filed by O.P. No.1 and in that proceeding the petitioner and his family members gave undertaking to keep her properly in her matrimonial home, however, the petitioner started to demand Rs.1 lakh from her father on the pretext of expenses in prosecuting the criminal case. A criminal case vide P.C.R. Case No. 366 of 2001 was filed by O.P. No.1 and in that proceeding the petitioner and his family members gave undertaking to keep her properly in her matrimonial home, however, the petitioner started to demand Rs.1 lakh from her father on the pretext of expenses in prosecuting the criminal case. Her father gave Rs.10,000/- to the petitioner however he ousted her from the matrimonial home on 7.6.2013. She has filed Criminal Misc. Case No. 23 of 2012 seeking maintenance under Section 125 of the Code of Criminal Procedure, however, it was dismissed in default primarily because she believed that the matter has been settled. The petitioner who was the opposite party in the proceeding of maintenance case has taken a stand that his wife is a rustic and illiterate lady and he has no source of income to maintain her. He has separated from the family and he is working as a casual labour having monthly' income of Rs.3,000/-. The wife of the petitioner has examined five witnesses and the petitioner has also examined three witnesses during the trial. They have also led documentary evidence in support of their respective case. 6. A married women becomes entitled for maintenance from the date of her marriage and she is entitled to live a dignified life. In Vimala (K) v. Veeraswamy (K), reported in (1991) 2 SCC 375 , the Honble Supreme Court has observed that the object behind Section 125 of the Code of Criminal Procedure is to prevent vagrancy and destitution. The purpose is to provide a speedy remedy to a destitute wife, minor child and the parents. On the plea raised on behalf of the petitioner that the learned Family Court Judge has not considered the evidence led by him and awarded maintenance to the opposite parties in spite of the fact that he has no source of income, suffice would be to indicate that the proceeding under Section 125 of the Code of Criminal Procedure, which is civil in nature, is primarily a summary proceeding whereunder the strict rules of evidence are generally not applied. O.P. No.1 has narrated several incident of harassment and tortured at the hands of her husband and stated that she has no independent source of income. O.P. No.1 has narrated several incident of harassment and tortured at the hands of her husband and stated that she has no independent source of income. The judgment in Original Maintenance Petition No.74 of 2013 runs into 21 pages and the learned Family Court Judge has recorded every minute details of the case and the findings recorded by the learned Judge is based on proper appreciation of the materials laid before him. 7. On income of the petitioner, the learned Family Court Judge has recorded as under : "Point No. III-with regard to this point, it is specific case of the petitioners vide para 34 of their original maintenance petition that respondent is a man of means having following incomes : (i) The respondent owns two Sawari bus and earns Rs.2000/- per day and thereby the source of his monthly income is Rs. 60,000/-. (ii) Respondent also runs a sweet shop having monthly income of source Rs. 15,000/- per month. (iii) Respondent also runs a Auto Rickshaw on hire whereby his daily income is Rs. 400/- as such from this source his monthly income is Rs.12,000/-. (iv) Respondent also runs a milk dairy out of which his daily income is Rs. 200/- and thereby this source his monthly income is Rs.6,000/-. Thus in toto respondent has got monthly income of Rs.93,000/-. 8. In view of the aforesaid facts, on the quantum of maintenance awarded to the opposite parties, all that I intend to indicate is that the learned Judge has kept in mind the principles indicated by the Hon'ble Supreme Court in Shamima Farooqui v. Shahid Khan, reported in (2015) 5 SCC 705 , on grant of maintenance under Section 125 of the Code of Criminal Procedure. In paragraph 14 of the reported judgment, the Hon’ble Supreme Court has observed as under : "14. ........It can never be forgotten that the inherent and fundamental principle behind Section 125, CrPC 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 have 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. The statute commands that there have 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. 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, 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. There can be no shadow of doubt that an order under Section 125 Cr PC 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, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. 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, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right." 9. In the above background, this has to be kept in mind that the Hon'ble Supreme Court has observed that exercise of revisional jurisdiction is justified only when it is found that the Court below has committed material irregularity or the judgment under challenge is perverse. A glance at the judgment in Original Maintenance Petition No. 74 of 2013 does not indicate that the learned Family Court Judge has committed any irregularity in the said proceeding and, as noticed hereinabove, the judgment by no stretch of imagination is perverse. 10. A glance at the judgment in Original Maintenance Petition No. 74 of 2013 does not indicate that the learned Family Court Judge has committed any irregularity in the said proceeding and, as noticed hereinabove, the judgment by no stretch of imagination is perverse. 10. In view of the aforesaid facts and the position in law on the subject, I am not inclined to interfere in this matter and, accordingly, Criminal Revision No.1331 of 2016 is dismissed. Revision application dismissed.