Dharmendra Sharma vs Prakhar on 24 November, 2017

THE HIGH COURT OF MADHYA PRADESH
CRR-987-2017

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(DHARMENDRA SHARMA Vs PRAKHAR)

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Gwalior, Dated : 24-11-2017

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Shri R.P. Singh, Advocate for applicant.

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This revision under Sections 397, 401 of Cr.P.C. has been
filed against the order dated 12/7/2017 passed by the Principal
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Judge, Family Court, Vidisha in MJC No.174/2014 by which the
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application filed by the respondent under Section 125 of Cr.P.C.

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has been allowed and the applicant has been directed to pay
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Rs.3,000/- per month by way of monthly maintenance.

The necessary facts for the disposal of the present
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application in short are that the respondent is the biological son
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of the applicant. The applicant was married to Smt. Meenu
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Sharma, the mother of the respondent, on 29/5/2012 and the
respondent was born out of the wedlock. The mother of the
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respondent is residing separately from the applicant from
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22/12/2013. It is undisputed fact that the respondent is having
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hole in his heart and a part of his heart is also shrinked. It is the
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case of the respondent that he is having a hole in his heart and his
main blood arteries are already blocked and his treatment is also
going on in Vidisha and MMS Hospital, Delhi. The monthly
expenses of his medicines are Rs.5,000/- and an amount of
Rs.20,00,000/- is required for his operation. As the mother was
being harassed by the applicant for want of dowry, therefore, she
is residing separately alongwith respondent in her father’s house
from 22/12/2013. It was further alleged that the applicant is a
qualified person having passed MBA and is earning Rs.10,000/-
per month. The family of the applicant has 15 bigha land and his
share is to the extent of 10 bigha and his yearly income from the

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agricultural land is Rs.2,00,000/-.

The claim of the respondent was denied by the applicant. It

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was alleged that the mother of the respondent is working as a
Government Teacher and is earning Rs.20,270/- per month by
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way of salary. The applicant was in a private job, but because of
false complaint made by the mother of the respondent, he has lost
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his job. The applicant has also filed an application under Section
9 of the Hindu Marriage Act, but still she is not ready and willing
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to stay with him. Treatment of the children is done in AIMS
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Hospital free of costs. The claim with regard to the expenses on
medicines is false. The applicant is ready and willing to keep the
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respondent and his mother alongwith him.

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The trial court after recording the statements of the
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witnesses has allowed the application and directed the applicant
to pay Rs.3,000/- per month to the respondent till he attains
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majority.

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Challenging the findings and the order passed by the trial
court, it is submitted by the counsel for the applicant that the
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father of the applicant is also a heart patient and he is also
required to look after his father. The applicant has already lost his
job because of the false complaint made by the mother of the
respondent. At present the applicant is an unemployed person
having no source of income. He is not in a position to pay even a
single paisa to the respondent, but he is ready and willing to keep
the respondent and his mother alongwith him.

Heard learned counsel for the applicant on the question of
admission.

The fact that the respondent is the biological son of the

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applicant has not been denied by the applicant. The fact that the
respondent is suffering from heart disease has also not been

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denied by the applicant. It is not the case of the applicant that he
is a handicap person or is not an able bodied person. It is well
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established principle of law that where the husband/father is an
able bodied person, then he cannot deny to pay maintenance
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amount only on the ground that either he is an unemployed
person or has a meager income.

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The Supreme Court in the case of Shamima Farooqui Vs.
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Shahid Khan reported in (2015) 5 SCC 705 has held as under:-

”15. While determining the quantum of
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maintenance, this Court in Jasbir Kaur Sehgal
v. District Judge, Dehradun (1997) 7 SCC 7 has
held as follows: (SCC p. 12, para 8)
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“8. … The court has to consider the
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status of the parties, their respective
needs, the capacity of the husband to
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pay having regard to his reasonable
expenses for his own maintenance and
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of those he is obliged under the law and
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statutory but involuntary payments or
deductions. The amount of maintenance
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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

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noted by this Court in Capt. Ramesh
Chander Kaushal v. Veena Kaushal

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(1978) 4 SCC 70 falls within the

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constitutional sweep of Article 15(3)
reinforced by Article 39 of the
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Constitution of India. It is meant to
achieve a social purpose. The object is
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to prevent vagrancy and destitution. It
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provides a speedy remedy for the
supply of food, clothing and shelter to
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the deserted wife. It gives effect to
fundamental rights and natural duties of
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a man to maintain his wife, children and
parents when they are unable to
maintain themselves. The aforesaid
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position was highlighted in Savitaben
Somabhai Bhatiya v. State of Gujarat
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(2005) 3 SCC 636 .”
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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
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unable to maintain the wife due to financial
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constraints as long as he is capable of earning.
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18. In this context, we may profitably quote a
passage from the judgment rendered by the
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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

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child. When the husband does not
disclose to the Court the exact amount

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of his income, the presumption will be

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easily permissible against him.

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19. From the aforesaid enunciation of law it is
limpid that the obligation of the husband is
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on a higher pedestal when the question of
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maintenance of wife and children arises.
When the woman leaves the matrimonial
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home, the situation is quite different. She is
deprived of many a comfort. Sometimes her
faith in life reduces. Sometimes, she feels
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she has lost the tenderest friend. There may
be a feeling that her fearless courage has
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brought her the misfortune. At this stage,
the only comfort that the law can impose is
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that the husband is bound to give monetary
comfort. That is the only soothing legal
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balm, for she cannot be allowed to resign to
destiny. Therefore, the lawful imposition for
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grant of maintenance allowance.”
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Thus, it is clear that where the husband/father is an able
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bodied person having no physical disability, then he cannot make
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a complaint that he is an unemployed person. The applicant is a
well qualified educated person having passed MBA, therefore, he
cannot say that he is not in a position to maintain his ailing minor
son. It is true that the son has a duty towards his father, but the
unfortunate aspect of the matter is that the father of the applicant
and the respondent, who is the son of the applicant, both are
suffering from heart disease. Under these circumstances, this
Court is of the view that the maintenance amount of Rs.3,000/-
awarded by the trial court cannot be said to be on a higher side.

Accordingly, the order dated 12/7/2017 passed by Principal
Judge, Family Court, Vidisha in MJC No.175/2014 is hereby

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affirmed.

The application fails and is hereby dismissed in limine.

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(G.S. AHLUWALIA)

Pr JUDGE
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Arun*

Digitally signed by ARUN
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KUMAR MISHRA
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Date: 2017.11.27 17:02:34
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+05’30’
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