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Madhya Pradesh High Court · body

2021 DIGILAW 754 (MP)

Manoj Sharma v. Priyanka Sharma

2021-11-23

G.S.AHLUWALIA

body2021
ORDER 1. This application under section 482 of Cr.P.C. has been filed against the order dated 11.1.2021 passed by Additional Principal Judge, Family Court, Gwalior in Case No.237/2019 by which the applicant was proceeded exparte and the applicant has been directed to pay a total amount of Rs.10,000/- per month by way of interim maintenance. 2. The necessary facts for disposal of the present application in short are that the respondents had filed an application under section 125 of Cr.P.C. on 11.11.2019. It appears that the notices which were being issued to the applicant but the same were not being served. On 9.1.2021, a report was submitted by the Process Server that when he went to the house of the applicant, then the applicant was not found. However, one person was there, who informed that he is brother of the applicant. The said person also disclosed that the applicant is out of station and he does not know that on what date he would come back. The said person also refused to accept the notices as well as to sign the notice. On the basis of the report given by the Process Server, the Court below by order dated 11.1.2021 treated the applicant as served and proceeded exparte. Thereafter, on 15.1.2021, the application filed by the respondents for grant of interim maintenance was taken up and after considering that the respondent No.1 is the legally wedded wife of the applicant and respondents No.2 and 3 are the children of the applicant and as they are residing separately, therefore, held that the applicant is under obligation to make payment of maintenance amount for their survival. Accordingly, a lump sum amount of Rs.10,000/- per month was granted by way of interim maintenance to the respondent i.e. wife and two minor children of the applicant. 3. Challenging the orders passed by the Court below, it is submitted by the counsel for the applicant that in fact the Court below has wrongly treated the applicant as served. He was not present in the house when the Process Server had come to serve the notice. However, he fairly conceded that his brother is residing separately and not in the house of the applicant. The counsel for the applicant could not point out the identity of the person who had disclosed himself to be the brother of the applicant. He was not present in the house when the Process Server had come to serve the notice. However, he fairly conceded that his brother is residing separately and not in the house of the applicant. The counsel for the applicant could not point out the identity of the person who had disclosed himself to be the brother of the applicant. The applicant has also not filed the copies of the previous order sheets as well as service reports to show that the applicant had never tried to avoid the service of notice. The applicant has also admitted that he has also filed an application under section 9 of Hindu Marriage Act which is also pending in the same Court. The applicant himself has admitted that his brother is residing separately and not in the same house. The applicant has not given the details of the place where he had gone, as projected by the said person to the Process Server. Thus it is clear that it was the applicant who himself refused to accept the notice by projecting that he is the brother of the applicant and also falsely informed to the Process Server that the applicant is out of station and also informed that it is not known that on what date he would come back. Under these circumstances, it is held that the applicant has failed to point out that he had never tried to avoid service of notice and has also failed to disclose the identity of the person who had disclosed himself to the Process Server as well as the brother of the applicant. Therefore, this Court is of the considered opinion that the trial Court did not commit any mistake by treating the applicant as served. 4. So far as the interim maintenance is concerned, undisputedly, the applicant has not disputed the relationship with the respondents. In the present application the applicant has not claimed that respondent No.1 is not his legally wedded wife. He has also not claimed that the respondents 2 and 3 are not his children. Thus where the respondents No.1, 2 and 3 are the wife and children of the applicant, then it is his duty to maintain them. 5. In the present application the applicant has not claimed that respondent No.1 is not his legally wedded wife. He has also not claimed that the respondents 2 and 3 are not his children. Thus where the respondents No.1, 2 and 3 are the wife and children of the applicant, then it is his duty to maintain them. 5. It is submitted by the counsel for the applicant that the applicant is an unemployed person and has no income, therefore, he has no source to make payment of the maintenance amount. 6. Heard the counsel for the applicant on the question of financial capacity. 7. It is not the case of the applicant that he is not able bodied person. The Supreme Court in the case of Reema Salkan v. Sumer Singh Salkan reported in (2019) 12 SCC 303 has held that if the husband is an able bodied person, then it is his duty to maintain his wife. 8. Even otherwise, a lump sum amount of Rs.10,000/- per month has been given to the respondents by way of interim maintenance. In view of the price index and the prices of daily needs as well as the fact that respondents No.2 and 3 are the minor children who require special diet as well as educational expenses, this Court is of the considered opinion that by no stretch of imagination it can be said that the lump sum amount of Rs.10,000/- per month awarded to the respondents No.1, 2 and 3 by way of interim maintenance is on higher side. 9. Accordingly, no case is made out for interfering with the orders dated 11.1.2021 and 15.1.2021 passed by Additional Principal Judge, Family Court, Gwalior in Case No.237/2019. 10. Accordingly, the application fails and is hereby dismissed.