Nitin Shivhare vs Smt. Anjali Shivhare on 7 December, 2017

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CRR 564/2017
Nitin Shivhare vs. Smt. Anjali Shivhare Anr.

Gwalior, dtd. 07/12/2017

Shri Prashant Sharma, Counsel for the applicant.
Shri Sanjay Kumar Mishra, Counsel for the respondent

no.1.

This Criminal Revision under Section 397/401 of Cr.P.C.
has been filed against the order dated 25-4-2017 passed by
Additional Principal Judge, Family Court, Gwalior in M.Cr.C.
No.41/2013 by which the application filed by the respondents
under Section 125 of Cr.P.C. has been allowed and the
applicant has been directed to pay Rs.15,000/- and Rs.5000/-
per month by way of maintenance to the respondents and an
additional amount of Rs.50,000/- towards the educational
expenses of respondent no.2. It has also been directed that
the applicant shall bear all the future educational expenses of
the respondent no.2.

The necessary facts for the disposal of the present
application in short are that the respondents filed an
application under Section 125 of Cr.P.C. against the
applicant. The undisputed facts are that the applicant and
the respondent no.1 were married to each other on 11-2-
2008 and the respondent no.2 has born out of the wedlock
on 20-3-2009 and from 8-10-2009, the respondents are
residing separately from the applicant.

It is alleged that from the date of marriage, the
applicant and his family members started harassing and
treating the respondent no.1 with cruelty because their
demand of Honda City Car was not fulfilled. The applicant
and his family members used to pass taunts for bringing
less dowry. On 20-3-2009, the respondent no. 2 was born.

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Even the delivery expenses were borne by the father of the
respondent no.1. When the respondent no.1 came back to
her matrimonial house, then the applicant and his family
members again started harassing her on the question of
not bringing sufficient dowry and Honda City Car. As the
respondent no.1 had given birth to a female child,
therefore, She was harassed on that ground also. On 8-
10-2009, She was turned out of her matrimonial house and
was left in the house of her father and from thereafter, She
is residing in her father’s house. The applicant filed an
application under Section 9 of Hindu Marriage Act, and the
said application was withdrawn however, the respondent
no.1 was ready and willing to go back to her matrimonial
house. On 3-11-2010, at about 7 P.M., the applicant came
to the house of the father of the respondent no. 1 and
expressed that since, his sister has come and She wants to
see the respondent no.2 and has also brought certain gifts,
therefore, the respondent no.1 went back to her
matrimonial house where again she was harassed and
beaten on the question of Honda City Car. It was alleged
that the respondent no.1 has no independent source of
income and is unable to maintain herself. The applicant is
working on the post of Junior Telecom Officer and is
drawing a monthly salary of Rs. 45,000/-. Thus, an
application for grant of maintenance was filed.

During the pendency of the application, re-conciliation
proceedings were taken up, and in that proceeding, the
respondent no.1, subject to her right to receive
maintenance, expressed that if the applicant is ready to
compromise, then She is also ready to compromise.
However, the applicant refused to compromise the matter
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as he is being harassed physically and mentally by the
respondent no.1 and expressed that he would abide by the
judgment of the Court.

The applicant filed his reply and denied the
allegations. It was alleged that in the proceedings under
Section 9 of Hindu Marriage Act, the respondent no.1
agreed to stay with the applicant and when the applicant
went to her father’s house in order to take her back, she
started misbehaving with the applicant and expressed that
She doesnot want to stay with the applicant and had given
a false undertaking before the Court. She also threatened
that She would get the applicant and his family members,
implicated in the criminal cases. It was further stated that
the respondent no.1 has independent source of income and
her annual income is Rs.2,10,000/- per annum. It was
further stated that the behavior of the respondent no.1 was
cruel towards the applicant and his family members. It was
alleged that on 1-1-2011, the respondent no.1 came to the
house of the applicant along with 3-4 anti social elements
and started using filthy language. She also threatened that
in case the door is not opened, then She would break open
the door. She also said to her mother-in-law, that She has
illicit relations with the applicant. On 14-2-2011, the
respondent no.1 sent a notice through her lawyer in which
the allegations of illicit relations between the applicant and
his mother and sister as well as with his maid servant were
leveled. A report was lodged for offence under Section
498-A of I.P.C. and the allegations were found incorrect by
the police, but suppressing this fact, the respondent no.1
filed a criminal complaint.

The Trial Court after recording evidence and hearing
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both the parties, allowed the application filed under Section
125 of Cr.P.C. and directed the applicant to pay Rs.
15,000/- and Rs. 5000/- per month to the respondents
respectively. The applicant was also directed to pay Rs.
50,000/- towards the educational expenses of the
respondent no.2 during the pendency of the application
and also directed the applicant to bear all future
educational expenses of the respondent no.2.

It is submitted by the Counsel for the applicant that
the Court below has committed material illegality by
awarding maintenance amount to the respondent no.1. It
is submitted that in fact, it is the respondent no.1 who is
residing separately without any reasonable reason. It is
further submitted that his salary has been wrongly
assessed and the liabilities of the applicant have not been
taken into consideration. It is further submitted that the
blanket order of bearing the future educational expenses of
the respondent no.2 has been wrongly passed.

Per contra, it is submitted by the Counsel for the
respondents that since, the paternity of the respondent
no.2 has not been in dispute, therefore, the applicant is
under statutory obligation to maintain the respondent no.2.
So far as the respondent no.1 is concerned, several
litigations have taken place between the parties, and on
several occasions, the matter was compromised and the
respondent no.1 voluntarily went to her matrimonial house
but every time, she was harassed and treated with cruelty
on the question of less dowry and demand of Honda City
Car. It is further submitted that the Trial Court has rightly
assessed the maintenance amount and further it is the
statutory obligation of the applicant to maintain his
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daughter. So far as the future educational expenses are
concerned, they may be quantified at Rs. 50,000 per year.

Heard the learned Counsel for the parties.
So far as the entitlement of the respondent no.2 to
receive the maintenance amount is concerned, since, the
applicant has not disputed the paternity, therefore, She is
entitled for maintenance amount. The applicant has also
admitted that he has not paid anything towards the
educational expenses of the respondent no.2. It is
submitted by the Counsel for the applicant, that a blanket
order directing to bear the future educational expenses of
the respondent no.2 is unwarranted. It is submitted that
the applicant can be compelled to bear the educational
expenses as per his financial status. It is submitted by the
Counsel for the respondent that the apprehension
expressed by the Counsel for the applicant is unrealistic.
The minimum expenses which are required to be borne for
the education of the child can be tentatively assessed,
therefore, it is submitted by the Counsel for the
respondent, that an amount of Rs. 50,000/- per year may
be quantified for bearing the future educational expenses
of the respondent no.2. This proposal made by the Counsel
for the respondents is accepted by the Counsel for the
applicant. Thus, the direction given by the Trial Court
to the effect, that the applicant shall bear the future
educational expenses of the respondent no.2 is
hereby quantified and it is directed that the applicant
shall pay an amount of Rs. 50,000/- per year which
shall be payable by 15th January of every year
towards the future educational expenses of the
respondent no.2.

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So far as the maintenance of Rs. 5000/- per month to
the respondent no.2 is concerned, since, the paternity of
the respondent no.2 has not been disputed by the
applicant, therefore, the said direction passed by the Court
below is affirmed.

Now, the moot question for determination is the
entitlement of the respondent no.1 to receive the
maintenance amount and the quantum of the maintenance.
It is clear that several litigations are going on between the
parties, including that of offence under Section 498-A of
I.P.C. A residence order under the Protection of Women
from Domestic Violence Act has also been passed.
However, still the applicant has not allowed the respondent
no.1 to stay in her matrimonial house. So far as the cruel
behavior of the respondent no.1 with the applicant and his
family members is concerned, it is the claim of the
respondent no.1 that the allegation of sending a notice with
indecent language and the allegation of illicit relations
between the applicant and his mother, sister and maid
servant is false. Even the respondent no.1 has filed a
complaint against the applicant, and the police under the
order of the Magistrate under Section 156(3) of Cr.P.C. has
registered the F.I.R.against the applicant. Considering the
litigations pending between the parties, this Court is of the
view that the Trial Court did not commit any mistake in
holding that the respondent no.1 is entitled for
maintenance amount.

So far as the quantum of maintenance amount is
concerned, it is submitted by the applicant that the pay slip
of the month of April 2017 has been filed, according to
which the gross income of the applicant is Rs. 76,559/- per
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month.

The Supreme Court in the case of Shamima
Farooqui Vs. Shahid Khan reported in (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 .”

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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 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.”
The applicant is working as Deputy Manager, B.S.N.L.

Even according to the Salary Slip of April 2017, his gross income
is Rs.76,559/-. it is the contention of the applicant that the
respondent no.1 was working as Financial consultant and is
earning more than Rs. 10,000/- per month. It is submitted by
the Counsel for the respondent no.1 that earlier the respondent
no.1 was working as Financial Consultant, but now She is not
working and is completely unemployed having no source of
income. Considering the submissions, status of the parties, price
index, prices of the goods of daily needs, etc. this Court is of the
considered opinion that the monthly maintenance of Rs.15,000/-
awarded by the Court below to the respondent no.1 cannot be
said to be on a higher side.

Accordingly, the order dated 25-4-2017 passed by
Additional Principal Judge, Family Court, Gwalior in M.Cr.C. No.
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41/2013 is affirmed subject to modification as mentioned in the
previous paragraph of this order.

The application is finally disposed of with the
aforementioned modification.

(G.S. Ahluwalia)
Judge

*MKB*

MAHENDRA KUMAR BARIK
2017.12.11 19:19:42 +05’30’

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