Upendra Patil vs Smt.Megha Patil on 5 October, 2017

1 CRR 815/2008 107/2009

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
SB:- Hon’ble Shri Justice G. S. Ahluwalia

CRR 815/2008
Smt. Megha Patil
vs.
Upendra Patil

AND

CRR 107/2009

Upendra Patil
vs.
Smt. Megha Patil

None for the parties

ORDER

(05/10/2017)
None for the parties. The case was called on 07/09/2017 and
none had appeared. Today also, none appears for the parties even
in the second round. Therefore, this Court is left with no other
option but to decide both the criminal revisions after going through
the record. This Court has passed the following common order and
this order shall also dispose of Criminal Revision No.107/2009
filed by Upendra Patil.

(2) Being dissatisfied with the quantum of maintenance awarded
by the trial Court, applicant- Smt. Megha Patil has filed Criminal
Revision No.815/2008 against the order dated 17/11/2008 passed
by Additional Principal Judge, Family Court, Gwalior in Case
No.160/2007, by which the application filed by applicant- Megha
Patil under Section 125 of CrPC was allowed and it was directed
that respondent Upendra Pail shall pay Rs.2,500/- per month to
applicant by way of maintenance whereas the respondent Upendra
Patil has filed Criminal Revision No.107/2009 challenging the
2 CRR 815/2008 107/2009

aforesaid order 17/11/2008, passed by Additional Principal Judge,
Family Court, Gwalior in Case No.160/2007 and prayed that either
the order passed under Section 125 of CrPC may be reversed or the
maintenance amount may be reduced.

(3) The necessary facts for the disposal of both the revisions in
short are that applicant Megha Patil was married to respondent-
Upendra Patil on 13/12/2006 at Pune, as the respondent and his
family members had insisted that the marriage shall be performed
at Pune itself. The entire family of the applicant went to Pune
where the marriage was performed. When she reached her
matrimonial house, then the elder sister of the respondent had
objected with regard to various arrangements including food etc.
and she also alleged that the arrangements were not made as per
their social status. After two- three days of her marriage, the
respondent and his family members demanded Rs.2 lacs, however,
the applicant did not inform anybody about the said demand.
Three-four days after the marriage, the respondent left her in the
house of her elder sister who is residing at Pune and then, the
applicant informed about the demand of Rs.2 lacs to her sister and
brother-in-law. When her sister tried to consult with the respondent
then the respondent alleged that he would keep the applicant with
him only when an amount of Rs. 2 lacs is given, otherwise he
would not take her back. After great persuasion, the respondent
took her back on 27/12/2006. Food was not given and she was
harassed by her mother-in-law, father-in-law, sister-in-law and the
respondent. The house in which the respondent is residing in three-
stored building and on the upper floor, her sister-in-law is residing
along with her family. On 28/01/2007, the applicant was slapped
by the respondent in the presence of her elder sister and brother-in-
law and the respondent also refused to talk to the elder sister of the
applicant and insisted that the father and brother of the applicant
should be called. On 4th February, 2007, her brother came to her
3 CRR 815/2008 107/2009

matrimonial house and tried to persuade in-laws of the applicant
but they did not agree as a result of which her brother brought her
back to Gwalior and from then, she is residing in her parents’
house. On 23rd February, 2007, her brother had talked to her
father-in-law and requested the respondent to come to Gwalior and
to take the applicant back. On 25/02/2007, the respondent came to
Gwalior and stated that until and unless an amount of Rs.2 lacs is
given, he would not take her back to her matrimonial house.
Thereafter, the applicant lodged a report at Mahila Police Station
Padav, District Gwalior and when no action was taken then she
filed a complaint.

(4) The applicant was cross-examined by the respondent. In her
cross-examination, the applicant has stated that the demand for the
first time was made on 20/12/2006. She had also made a complaint
to Police Station Hadapsar, District Pune and admitted that the
allegation of demand of Rs.2 lacs was not mentioned and she has
given an explanation as she was interested for reconciliation,
therefore, the allegations were not made. The reconciliation
proceedings had also taken place on 28/01/2017 at Pune and the
applicant has also admitted that letter Ex.D2 was written by sister
of the applicant to the sister of the respondent mentioning therein
that because of intellectual differences, the marriage/relation is not
possible. However, this letter was written on 08/05/2006 i.e. prior
to the marriage. Thus, it is clear that the family of the applicant
was already apprehending that there are intellectual differences
between the parties and the marriage may not be possible but the
respondent has not explained that when this letter Ex.D/2 was
already written by the sister of the applicant to the sister of the
respondent, then who persuaded the applicant or her family
members to agree for the marriage. When the bride’s family had
already expressed his inability to go ahead with the marriage
proposal on the ground of intellectual differences, then it was for
4 CRR 815/2008 107/2009

the respondent to explain as to how the marriage was finalized.
The applicant has also stated that after the marriage, she had stayed
with her matrimonial house for about 20-25 days only and the
marriage could not be consummated because the respondent had
stayed away from her because of non-fulfillment of demand of
dowry. The applicant has further stated that apart from two four
wheelers i.e. Maruti 800 and Tata DI 207, the respondent is also
having one Scorpio. She has further stated that if the respondent
agrees to keep her properly, then she is still ready and willing to go
along with the respondent.

(5) Respondent Upendra Prabhakar Patil (DW1) admitted that
on 28/01/2007, a meeting was held in the house of his friend for
reconciliation. He further stated that his father is a retired Central
Government Employee but was not in a position to state the post
from which his father has retired. He further stated that as a private
complaint was filed by the applicant under Section 498-A of IPC,
therefore, on 09/06/2007 he went to Police Station Padav, District
Gwalior but the applicant did not join his company and, therefore,
he did not take any other step for restitution of conjugal rights.
(6) From the evidence of both the parties, it is clear that there
were certain difference between the parties even prior to the
settlement of marriage. The sister of the applicant had already
expressed that the marriage may not be possible because of
intellectual differences. When the letter dated 08/05/2006 written
by the sister of the applicant has been filed by the respondent
himself, then it was for the respondent to clarify that under what
circumstance the marriage was ultimately solemnized and who
persuaded the other party to go ahead with the marriage but that
has not been done by the respondent. Therefore, this Court is of the
considered opinion that in spite of intellectual differences between
the parties, the marriage ceremony was performed. The applicant
has alleged that she was harassed and, therefore, she had lodged
5 CRR 815/2008 107/2009

the FIR and has filed a private complaint under Section 498-A of
IPC whereas the respondent did not take any legal steps for
restitution of conjugal rights. Thus, it is clear that the trial Court
did not commit any mistake in holding that the applicant is
residing separately because of reasonable reason as she was
harassed by the respondent and his family members due to non-
fulfillment of their demand of Rs.2 lacs. Accordingly, it is held that
the applicant is entitled for maintenance.

(7) The next question for determination is about the quantum of
maintenance.

(8) The respondent- Upendra Prabhakar Patil in his cross-
examination has admitted that he is a labour civil contractor and
stated that his monthly income is Rs.8-10 thousand. It was further
stated by him that about Rs.5,000/- is required for meeting his
domestic expenses whereas Rs.2-3 thousand is spent for his
medical treatment. At present, he is making payment of Rs.6,500/-
to the applicant by way of maintenance out of which, Rs.5,000/- is
being paid in compliance of the order passed under Section 24 of
the Hindu Marriage Act. The respondent also admitted in his cross-
examination that he is the owner of two four wheelers i.e. Maruti
800 car and Tata DI 207 which is used for transportation of
labourers.

(9) So far as the question of maintenance is concerned, it is well
established principle of law that the lady is entitled to enjoy the
same social and financial status which she would have otherwise
enjoyed in her matrimonial house. In the present case, the
respondent is a Contractor by profession and is having two four
wheelers. An amount of Rs.5,000/- was also granted to the
applicant under Section 24 of the Hindu Marriage Act. However,
there is nothing on record as to what transpired to the proceedings
initiated under Section 12 of the Hindu Marriage Act by the
respondent. The order dated 22/05/2008 passed under Section 24
6 CRR 815/2008 107/2009

of the Hindu Marriage Act has been placed on record by the
respondent by Ex.D20. It is clear that the respondent had filed an
application for grant of divorce against the applicant.
(10) It is also well established principle of law that while
awarding the maintenance under Section 125 of CrPC, the Court
has to take into consideration the maintenance amount awarded to
the lady under different statutory provisions. The order of interim
maintenance under Section 24 of Hindu Marriage Act was passed
in the year 2008 and nine long years have passed. Therefore, it can
be presumed that the said proceedings must have come to an end.
Be that as it may, the factual aspect is that the respondent is a
Contractor and, therefore, the applicant is entitled to enjoy same
financial status which she could have otherwise enjoyed.
(11) So far as the income tax returns Ex.D4 to D10 are
concerned, the same can be an indicative the gross total income of
the respondent. The purpose of filing income tax returns is for
payment of taxes and it is a matter between the assessee and the
revenue authority. Therefore, the income tax returns can be taken
as guiding factor for assessing the financial status of the parties.
From the income tax returns of assessment year 2008-2009
(Ex.D9), it is clear that the gross income of the respondent was
Rs.2,20,117/- which means that at least his monthly income is
about Rs.20,000/-. The respondent in his cross-examination has
also admitted that he had come to Gwalior from Pune on four
wheeler but he denied that the vehicle belongs to him and alleged
that the vehicle belongs to his friend and expenses of diesel has
also been borne by his friend but he has not named the person who
is the owner of the Scorpio four wheeler on which the respondent
had come to Gwalior and he has also not named the person who
had made payment of his expenses of diesel. Thus, it is clear that
the respondent has suppressed his actual income and if a person
can come to Gwalior from Pune on four wheeler by road,
7 CRR 815/2008 107/2009

specifically when the trains are available between two stations, that
clearly indicates the financial status of the respondent. Under these
circumstances, this Court is of the view that the amount of
Rs.2,500/- awarded by the trial Court is on the lower side.
(12) The Supreme Court in the case of Shamima Farooqui v.
Shahid Khan, (2015) 5 SCC 705 has held as under:-

”15. While determining the quantum of maintenance,
this Court in Jasbir Kaur Sehgal v. District Judge,
Dehradun (1997) 7 SCC 7 has held as follows: (SCC
p. 12, para 8)
“8. … The court has to consider the status of
the parties, their respective needs, the capacity
of the husband to pay having regard to his
reasonable expenses for his own maintenance
and of those he is obliged under the law and
statutory but involuntary payments or
deductions. The amount of maintenance fixed
for the wife should be such as she can live in
reasonable comfort considering her status and
the mode of life she was used to when she lived
with her husband and also that she does not feel
handicapped in the prosecution of her case. At
the same time, the amount so fixed cannot be
excessive or extortionate.”

16. Grant of maintenance to wife has been
perceived as a measure of social justice by this Court.
In Chaturbhuj v. Sita Bai (2008) 2 SCC 316, it has
been ruled that: (SCC p. 320, para 6)
“6. … Section 125 CrPC is a measure of social
justice and is specially enacted to protect
women and children and as noted by this Court
in Capt. Ramesh Chander Kaushal v. Veena
Kaushal (1978) 4 SCC 70 falls within the
constitutional sweep of Article 15(3) reinforced
by Article 39 of the Constitution of India. It is
meant to achieve a social purpose. The object
is to prevent vagrancy and destitution. It
provides a speedy remedy for the supply of
food, clothing and shelter to the deserted wife.
It gives effect to fundamental rights and natural
duties of a man to maintain his wife, children
and parents when they are unable to maintain
themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya v.
State of Gujarat (2005) 3 SCC 636 .”

8 CRR 815/2008 107/2009

17. This being the position in law, it is the obligation
of the husband to maintain his wife. He cannot be
permitted to plead that he is unable to maintain the
wife due to financial constraints as long as he is
capable of earning.

18. In this context, we may profitably quote a passage
from the judgment rendered by the High Court of
Delhi in Chander Parkash Bodh Raj v. Shila Rani
Chander Prakash 1968 SCC Online Del 52 wherein it
has been opined thus: (SCC On Line Del para 7)

7. … an able-bodied young man has to be
presumed to be capable of earning sufficient
money so as to be able reasonably to maintain
his wife and child and he cannot be heard to say
that he is not in a position to earn enough to be
able to maintain them according to the family
standard. It is for such able-bodied person to
show to the Court cogent grounds for holding
that he is unable, for reasons beyond his
control, to earn enough to discharge his legal
obligation of maintaining his wife and child.
When the husband does not disclose to the
Court the exact amount of his income, the
presumption will be easily permissible against
him.

19. From the aforesaid enunciation of law it is limpid
that the obligation of the husband is on a higher
pedestal when the question of maintenance of wife and
children arises. When the woman leaves the
matrimonial home, the situation is quite different. She
is deprived of many a comfort. Sometimes her faith in
life reduces. Sometimes, she feels she has lost the
tenderest friend. There may be a feeling that her
fearless courage has brought her the misfortune. At this
stage, the only comfort that the law can impose is that
the husband is bound to give monetary comfort. That is
the only soothing legal balm, for she cannot be allowed
to resign to destiny. Therefore, the lawful imposition
for grant of maintenance allowance.”

(13) Thus, it is clear that not only the wife is entitled to enjoy the
same status which she could have otherwise enjoyed in her
matrimonial house but if the husband is a able-bodied person, then
he cannot refuse to pay adequate maintenance amount to his wife
merely on the ground that his monthly income is less.

9 CRR 815/2008 107/2009

(14) Considering the totality of the facts and circumstances of

the case, this Court is of the view that the applicant is entitled for
monthly maintenance amount of Rs.5,000/- per month. The order
dated 17/11/2008 passed by the Additional Principal Judge, Family
Court, Gwalior in Case No.160/2017, is modified and it is directed
that applicant- Smt. Megha Patil shall be entitled to get the
monthly maintenance amount of Rs.5,000/- per month in place of
Rs.2,500/- per month as directed by the Court below.
(15) With the aforesaid observation, the criminal revision filed
by applicant- Smt. Megha Patil i.e. Criminal Revision
No.815/2008 succeeds and is partly allowed whereas the criminal
revision filed by respondent – Upendra Patil i.e. Criminal
Revision No.107/2009 fails and is hereby dismissed.

(G. S. Ahluwalia)
Judge

MKB

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