No Maintenance – Women who desert her husband her own

IN THE COURT OF MS. POOJA TALWAR,METROPOLITAN MAGISTRATE
( MAHILA COURT – SOUTH EAST DISTRICT )
SAKET COURT COMPLEX, NEW DELHI

CC NO. 176/08

IN THE MATTER OF :-
SMT. RAMA KAPOOR BHATNAGAR
W/O SH. MANU BHATNAGAR,
D/O LATE SH. A. L. KAPOOR
R/O HOUSE NO. B-2, KAILASH COLONY,
NEW DELHI…………………..PETITIONER
VS.
SH. MANU BHATNAGAR,
S/O SH. R. P. BHATNAGAR,
R/O HOUSE NO. 24, CHITRA VIHAR,
NEW DELHI…………………. RESPONDENT

Date of Institution : 23.12.2005
Date of Order : 08.03.2011
JUDGMENT

1. This judgment shall dispose of the petition filed under Section 125 Cr.P.C. The brief facts of the petition are as under.

2. It is alleged by the petitioner that she was married to the respondent on 03.07.1991 according to Hindu rites and ceremonies and no issue was born out of this wedlock.
It is alleged that since the inception of marriage the respondent started harassing, torturing mentally and physically the petitioner along with his parents. It is further alleged that the respondent and his family members turned her out from the matrimonial home in Nov-2000 and took all her jewellary and stridhan articles.
Therefore, since then she is compelled to live at the mercy of her mother and brother in her parental home. It is also alleged that the respondent filed divorce petition against the petitioner in May-2002 and obtained ex parte divorce decree by giving false address of the petitioner and he also committed the offence of bigamy by performing another marriage with Ms. Sujata. It is stated that the respondent is a qualified Architect (B.Arch. from Chandigarh) and MRP from Cornell University, USA and having an established architectural practice and earning from the same Rs. 30,000/- per month. Further he is also working with INTACH and earning Rs. 36,000/- per month.
He has sold the house which was in the joint name of the parties by forgery and sale proceeds of the same have been misappropriated by him. He is also getting Rs.20,000/- per month from rent and he has no other liability except to maintain the petitioner. It is alleged that the respondent is the only son of his parents and also maintaining a Zen Car and is a man of means.

3. Reply has been filed by the respondent wherein he has denied all the allegations levelled in the petition and it is stated that the petitioner is a qualified architect and doing professional practice in Office bearing no. B-2, Kailash Colony, New Delhi and has the capacity to maintain herself. It is further stated that it was the petitioner who was cruel, rude and unjust towards the respondent as she is lady of quarrelsome and irritating nature and was in the habit of insulting and humiliating the respondent. It is further stated that the petitioner never discharged her matrimonial obligations towards the respondent and her in laws. It is also stated that the petitioner herself deserted the respondent without any reasonable and sufficient cause. Further, the respondent has admitted his work but has denied his income as stated by the petitioner.

4. Replication has been filed by the petitioner reaffirming the contents of the petition and vehemently denying all the allegations made by the respondent in his reply. In her replication the petitioner has admitted that she is a
qualified architect.

5. Evidence was led by both the parties. Both the parties have examined themselves as the only witnesses.

6. The present petition has been filed under Section 125 CrPC which reads as follows:-
SECTION 125 (1) CR.P.C. :-
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 his father or mother, unable to maintain himself or herself,
A Magistrate of the first, 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.

READ  Divorce: Desertion, Mental Cruelty

Under the said provision the right to maintenance is circumscribed by certain factors which are:
a. Relationship with the respondent as wife /Child/ father / mother, as the case may be,
b. The factum of neglect.
c. The ground for her residing separately,which should be reasonable and sufficient to make her entitled for the relief,
d. Incapability of petitioner to survive on her own.
e. Capability of respondent to make provision for the maintenance.
There is also an ouster clause. Section 125
(4) CrPC which reads as under:-
“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. ”

The proceedings under Section 125 CrPC are quasi criminal and extent of proof required is not of `proof beyond reasonable doubt’ but the parties are required to prove their respective cases by `preponderance of probabilities’. My issuewise findings are as under: –
6.a. Relationship with the respondent as wife /Child/ father / mother, as the case may be,
6.b. The factum of neglect
6.c. The ground for her residing separately,which should be reasonable and sufficient to make her entitled for the relief,
6.d. Incapability of petitioner to survive on her own.
and
6.e. Capability of respondent to make provision for the maintenance.
My issuewise findings are:-
6.a. Relationship with the respondent as wife / Child/ father / mother, as the case may be,As regards this issue is concerned, the factum of marriage has not been denied by the respondent,therefore, this issue is decided in favour of the petitioner.

6.b. The factum of neglect
As regards this issue is concerned, the petitioner in her petition has mentioned that immediately after the marriage the behaviour and the attitude of the respondent and his family members was very cruel towards her and her in laws started harassing and torturing her and finally she was thrown out of her matrimonial home in November, 2000 in three wearing apparels. Whereas, in her cross-examination she has firstly admitted that she has never stayed with her in-laws at any point of time and that she has visited them just three or four times and that too for a couple of hours. She has nowhere explained as to how she was mentally tortured or harassed either by the respondent or his parents in the entire complaint. She has admitted in her crossexamination that both the parties married in the year 1991 and immediately after the marriage she came back to live with her mother. She joined the company of the respondent in Faridabad house on 31.12.1997, therefore,she has not stayed with the respondent after the marriage, i.e. from 1991 to 1997. Despite several requests by the respondent, the petitioner did not join his company at his parental home and she constantly insisted to live in a separate accommodation. Therefore, the respondent along with the petitioner got a house constructed jointly which was in a habitable condition only in the year 1998. The parties started staying together in 1998.
On 09.12.1999, the respondent underwent a surgery and was hospitalized, during this period the petitioner was again staying with her mother. On much pursuation, the petitioner joined the company of the respondent in his parental house. And thereafter, in the first week of October, 2000, the petitioner left the house of the respondent and started living in the house at Faridabad. Although, the same has been denied by the petitioner that she has ever stayed with the respondent in the parental house.
But, she has mentioned in her petition at Para 6(C) that she was turned out of the house in November 2000 but in her cross-examination, she has deposed that she lived at Faridabad house till April 2001, therefore, story of the respondent seems to be quite probable that she stayed with the respondent in her parental house till November 2000, and thereafter, shifted to the Faridabad house and left the said house in April 2001 and since then,she has been staying with her mother.

READ  Petitioner must claim she is unable to maintain herself for relief of maintenance

From the above facts, it can be discerned that the petitioner in her marriage of ten years has stayed with the respondent for a very short span. She has not been bothered to visit the respondent when he was hospitalized. Petitioner has not mentioned even a single instance when she was harassed or ill-treated because of which she had to leave the matrimonial house. Therefore,to my mind, the petitioner has left the respondent out of her own sweet will and has not been neglected by the respondent. Therefore, this issue is decided in favour of the respondent.

6.c. The ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief
As enumerated above, as per the own admission of the petitioner, she has not lived with the respondent after the marriage for the reasons that the respondent had no house of his own and joined his company only in the year 1998. For seven long years she had stayed away from her husband in her parental house along with her mother. Thereafter, when the respondent fell ill and was hospitalized, she, as his wife, did not even visit the hospital or called up the respondent. She again joined the company of the respondent for a very short span in December 1999 for about another 8-9 months and then left the house at Faridabad out of her own sweet will. She has not explained as to what compelled her to leave the matrimonial house and live with her mother. She has herself admitted in her cross-examination that she has not tried to contact the respondent once she has left the matrimonial house. Therefore, to my mind her staying sepearely is not reasonable or justified. This issue is also decided in favour of the respondent.

6.d. Incapability of petitioner to survive on her own and

6.e. Capability of respondent to make provision for the maintenance
As regards Incapability of petitioner to
survive on her own is concerned, it is an admitted
fact that the petitioner is under Graduate in Architecture
and post-graduate from USA. It is also evident from the
fact that she had income of her own which she contributed
towards the joint house at Faridabad along with the
respondent. Therefore, as admitted by her in her crossexamination that she
had jointly spent even on the construction of the house. She has also been filing her
ITRs. It has been stated by the petitioner that the property
of Faridabad has been sold by the respondent alone but
the petitioner has not denied the letter EX. CW1/D1
whereby the respondent had requested her to sell the
house as he was facing financial crunch. As per the
admission of the respondent he has only sold his half
share in the property and the half of the share still belongs
to the petitioner which can be sold by her at any point of
time. The petitioner, to my mind, has sufficient assets in
her name to sustain herself. Although, this fact cannot be
denied that today she is 62 years of age and and is no
more in a condition to work but if she has chosen to desert
her husband and stay away from him as concluded by me
in the above two issues as per of her own sweet will, she
cannot be granted benefit of her own wrongs.
Further, as far as Capability of respondent
to make provision for the maintenance is
concerned, as the petitioner is staying separately from
the respondent as per her own sweet will and no cruelty
has been committed by the respondent upon her,
therefore, there is no question of the respondent to
maintain the petitioner anymore.

READ  No Maintenance, if Left her own and False DV

From the above, I am of the view that the
petitioner being a professional lady has not taken
the institution of the marriage seriously ever and
caused mental cruelty to the respondent. Since as
per her own admission, after her marriage in the
year 1991 she did not stay with the respondent till
1998 as he did not have his own house and she was
not agreeable to live at the parental house of the
respondent. To my mind, she has not discharged
her liabilities and obligations as a wife. She has
filed this petition only to extract money from the
respondent. As he has already divorced her and
living a happy married life, in case she was actually
harassed or tortured she should have at least sited
few instances where she was tortured or harassed
by the respondent.

At one place, she states that she has never stayed with her in laws at any point of time, on the other hand, he states that since the inception of her marriage, she has been treated with cruelty and has been constantly harassed by in-laws including the husband and she had sleepless nights. When she has never stayed with her inlaws, where was the occasion for them to treat her with cruelty. She had just visited them on 3 or 4 occasions and that too for a couple of hours.
To my mind, it is quite improbable that they could have committed any cruelty upon her.
Rather by her indifferent and callous attitude she has caused cruelty to her husband, by refusing to join his company on one pretext or the other, firstly,for not having a house in his name and thereafter,when a husband needs his wife the most, at the time of his illness and being hospitalized. Even at that time, she did not discharge her obligations as a wife. She did not visit him in the hospital, did not even have the courtesy to call him during his stay in hospital.

Therefore, it can be discerned that the complainant has left the respondent on her own accord and out of her own sweet will and without any just and reasonable cause. Accordingly, as per the provisions of Section 125 (4) CrPC, the petitioner is not entitled to any maintenance.
Petition stands disposed of accordingly.

7. Interim order, if any stands vacated from the date of this order.

9. File be consigned to record room.
Announced in (POOJA TALWAR) open Court Mahila Court/MM/SED/Saket/ND on 08.03.11 08.03.11

Present: Both the parties with their counsels.Vide my separate order, petition filed u/S 125 CrPC is disposed of.
Accordingly, file be consigned to record room.
(POOJA TALWAR)
MM/SED/SAKET
08.03.2011

RAMA KAPOOR VS. MANU BHATNAGAR
176/08 11.05.11
File is taken up today on request of Ahlmad for correction of typographical error in the judgment.
It was observed by the Ahlmad of the Court while he was sending the file to the Coping Agency that vide orders dt. 08.03.11 I had pronounced the judgment of case bearing no. 176/08 titled as RAMA KAPOOR VS. MANU BHATNAGAR and signed the same. However,inadvertently while typing the name of the Court, the name of my Ld.
Predecessor MM of this Court was mentioned by Stenographer. Therefore, as per the provisions of Section 362 of CRPC, I hereby correct the said typographical error in the judgment pronounced by me and the front page of the said judgment shall be read as “IN THE COURT OF MS. POOJA TALWAR, METROPOLITAN MAGISTRATE, (MAHILA COURT­SOUTH EAST DISTRICT), SAKET
COURT COMPLEX, NEW DELHI”.
(POOJA TALWAR)
Metropolitan Magistrate
Mahila Court/SED/Saket/N.D.
17 -KKK

Leave a Comment

Your email address will not be published. Required fields are marked *