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Madhya Pradesh High Court · body

2023 DIGILAW 616 (MP)

Nirmala Verma v. Arun Kumar Verma

2023-06-21

ANURADHA SHUKLA

body2023
ORDER 1. In this Criminal revision filed under section 397 of Cr.P.C. the petitioners have challenged the order passed on 19.7.2013 by First Additional Principal Judge Bhopal in M.J.C. No.166/2011, whereby the maintenance application of petitioner No.1 was rejected and maintenance of Rs.1,000/- was allowed in favour of petitioner No.2, which is on the lower side. 2. Facts pleaded by the petitioners in application under section 125 of Cr.P.C. filed before the concerned family Court are that petitioner No.1 is a legally wedded wife and petitioner No.2 is the daughter of respondent. Three or four months after the marriage that was solemnized on 11.7.2008, the respondent started harassing the petitioner No.1 for demand of Rs.1 Lakh in dowry and also caused aspersion on her character. She was also harassed by the mother and sister of the respondent for the similar demand. After the birth of petitioner No.2 on 15.5.2009, respondent took both the petitioners to the parental house of petitioner no.1 and told her not to come back unless the demand of Rs.1 Lakh was fulfilled. Since then both the petitioners are being neglected by the respondent, who has not taken care of any of their needs. Respondent is a teacher in District Raipur (C.G.) and runs an internet cafe. His total income from all the sources is Rs.30,000/- per month. On this basis, it was prayed to allow maintenance amount of Rs.10,000/- to respondent No.1 and Rs.3000/- to respondent No.2. 3. The respondent denied the above averments and specifically pleaded that petitioner no.1 was never harassed by the respondent or his family members. They never demanded any dowry. She, after giving birth to her daughter willingly came to her parents house and refused to come back despite repeated insistence on the part of respondent. Petitioner No.1 is a highly educated woman working in Bhopal. Respondent earns merely Rs.7814/- per month through his job and has no other source of income. Based on these facts, prayer was made to reject the application. 4. Evidence of both the parties was recorded by the learned Judge of Family Court and on appreciation of evidence he reached to the finding that petitioner No.1 has willingly deserted the company of respondent without any sufficient cause and further she is a working woman. Based on these facts, prayer was made to reject the application. 4. Evidence of both the parties was recorded by the learned Judge of Family Court and on appreciation of evidence he reached to the finding that petitioner No.1 has willingly deserted the company of respondent without any sufficient cause and further she is a working woman. Hence, her application for maintenance was rejected and looking to the needs of petitioner No.2 as well as the income of respondent, an amount of Rs.1,000/- was awarded as maintenance to petitioner No.2. 5. In this revision petition the grounds raised by the petitioners are that it is the respondent, who has neglected and refused to maintain the petitioners; there has been no withdrawal on the part of petitioner from the company of respondent. Respondent is skipping from his liability to maintain them. It has been wrongly held by the learned Judge of Family Court that petitioner No.1 is working as a computer operator in Bhopal. There is no evidence to support this fact. On this basis, the prayer is made to allow the petition. 6. Respondent has opposed the petitioner by asserting that there is no illegality or perversity in the order, hence it needs no interference. 7. Arguments of both the parties have been heard and record has been perused. 8. Petitioner no.1 and her brother Uttam Kumar are examined as witnesses before the learned family court. The facts stated in the petition about the harassment caused to petitioner no.1 and the factum of desertion by the respondent have been corroborated by the testimony of these witnesses. The reason for desertion by the respondent has been claimed to be demand of dowry but the entire evidence recorded on behalf of petitioners does not suggest that any complaint or FIR was ever made by petitioner No.1 regarding this harassment and demand of dowry. This may also be mentioned that petitioner no.1 is a well-educated and qualified lady who has admittedly worked as computer operator in BHEL. Non-reporting the matter of aggressive advances and dowry harassment, castes doubt upon these allegations. 9. Petitioner No.1 has claimed that after marriage, she resided with the parents of respondent at Raipur while the respondent himself was working at Riwadi which is 75 kms. away from Raipur. It is claimed by her that she never stayed at Riwadi along with the respondent. 9. Petitioner No.1 has claimed that after marriage, she resided with the parents of respondent at Raipur while the respondent himself was working at Riwadi which is 75 kms. away from Raipur. It is claimed by her that she never stayed at Riwadi along with the respondent. In contrast to these claims, the brother of petitioner No.1 has stated that petitioner No.1 was residing with the respondent at the place of his employment. It is a material fact that petitioner no.1 has hardly lived for a year with the respondent, still there is contradiction in the statements of petitioner and her brother regarding the place of residence of petitioner No.1 10. Petitioner No.1 has stressed upon the fact that after delivery of child, the respondent deserted her and never turned up to visit the petitioners but it is admitted by her in paragraph No.13 of her cross-examination that the respondent once came to Bhopal and asked her to come along. Again, brother of petitioner no.1 has not admitted any such visit of respondent to Bhopal. This reflects material contradiction in the claim about desertion committed by the respondent. 11. During her cross-examination, petitioner No.1 was asked whether she was willing now to live with the respondent to which she answered that in the light of allegations on her character, how could she live with the respondent. 12. The respondent has stated in his statement that petitioner No.1 was not willing to live at Raipur because she was working in Bhopal and was insisting that respondent should come to Bhopal and live there. In the entire cross-examination, no question was asked to him about the alleged demand of dowry and harassment caused to petitioner No.1. The only suggestion given about the alleged misbehaviour by the respondent rested on false allegation made by him about the character of petitioner no.1 which he categorically denied. 13. On the basis of appreciation of evidence led by both the parties, the learned Presiding Judge of Family Court reached to the conclusion that there is no truth in the allegation of demand of dowry nor the factum of false allegation about the character assassination could be proved cogently. The finding of Family Court was that it is petitioner no.1 who had actually deserted the respondent. Hence, it was concluded that there was no neglect on the part of respondent his liability to maintain petitioner No.1. The finding of Family Court was that it is petitioner no.1 who had actually deserted the respondent. Hence, it was concluded that there was no neglect on the part of respondent his liability to maintain petitioner No.1. These findings are based on the evidence available on record. Accordingly, no interference is called for in these findings. 14. The maintenance application of petitioner No.1 has been rejected also for the reason that petitioner No.1 is an highly educated person who holds the post-graduate degree in the subjects of Chemistry and English and she has also done DCA course. It is also an admitted fact that she has worked as computer operator in BHEL though it is claimed by her that after marriage, she submitted her resignation but no document is placed on record by her to support this fact of resignation. The best available evidence was withheld by petitioner No.1 regarding her capability to maintain herself and no reason has been assigned for withholding this important piece of evidence. Consequently, the finding of learned Judge of Family Court regarding the capability of petitioner No.1 to maintain herself cannot be interfered with. 15. In support of his submission, petitioner No.1 has placed reliance upon the decisions rendered in the cases of Smt. Farjana and another v. Rashid passed in Criminal Revision No.1414/2019 dated 26.4.2022, Smt. Puja Makhija v. Jitendra Mahika passed in Criminal Revision No.3829/2022 dated 3.2.2023 and Anju Garg and another v. Deepak Kumar Garg reported in 2022 SCC Online SC 1314. In these cases, it has been held that it is the primary duty of husband to maintain his wife even if she is a qualified and an educated lady but not having any income to maintain herself. But the facts proved in this case are that the petitioner/wife has herself deserted the respondent/husband and she is still in employment. No where the petitioner/wife has pleaded that her earnings are not sufficient enough to maintain herself. Without any pleading in this regard the court cannot assume the insufficiency of resources of petitioner/wife to maintain herself. Hence, the cited case laws have no relevance in the distinguished circumstances of this case. 16. Based upon the above discussion, the impugned order does not deserve any indulgence so far as it relates to the rejection of maintenance application of petitioner No.1. 17. Hence, the cited case laws have no relevance in the distinguished circumstances of this case. 16. Based upon the above discussion, the impugned order does not deserve any indulgence so far as it relates to the rejection of maintenance application of petitioner No.1. 17. Petitioner No.2, who is the daughter of respondent, was born in the year 2009. Currently, her age must be around 14 years. Admittedly, the respondent is a Government servant and her salary which was around Rs.8,000/- per month in the year 2013 must have seen multiple increase since then. Although maintenance allowance of Rs.2,000/- per month has been claimed in the original petition for petitioner No.2 in the year 2011 but looking to the present age of petitioner No.2 and assuming that the respondent is earning adequate salary, it is directed that he shall pay maintenance to petitioner No.2 at Rs.1500/- per months from the date of order of learned Judge of Family Court i.e. 19.7.2013 till date and henceforth he shall pay the maintenance allowance of Rs.4,000/- per month till petitioner No.2 reaches the age of 18 years. 18. Accordingly, this revision petition is partly allowed. A copy of this order along with the records be sent to the courts below for information and compliance.