M.Cr.C. No. 10277/2017

3

Jabalpur, Dated: 13/12/2017

Ms. Vandana Tripathi, learned counsel for the petitioners.

Shri M.L. Sharma, learned counsel for the respondent No.

1.

Shri Deependra Mishra, learned G.A for the respondent

No. 2/State.

Heard.

This petition under Section 482 Cr.P.C has been filed

challenging the order dated 22.02.2017, passed by 2nd A.S.J,

Gadarwara in Criminal Revision No. 57-63/14, wherein the

petitioners claim for enhancement of maintenance was

disallowed.

2. The petitioner No. 1 is the wife of respondent No. 1

whereas petitioner No. 2 is the minor son of the petitioner No. 1.

The petitioner No. 1 and 2 filed an application under Section 125

of the Cr.P.C, against the respondent and pleaded that the

respondent after the marriage treated the petitioner No. 1 with

cruelty for she brought less dowry. She informed her parents. But

thinking that the family life of the petitioner No. 1 should not be
shattered, they did not tell anything to to anyone and did not

lodge any report. Subsequent thereto the respondent continuously

harassed the petitioner No. 1, therefore, petitioner No. 1 started

living at her parental home. She tried to approach the Family Re-

conciliation Centre, Gadarwara on 22.05.2012. Thereafter, the

respondent settled the dispute and admitted his wrongs and took

the petitioner No. 1 with him.

3. The respondent filed an application for restitution of

conjugal rights under Section 9 of the Hindu Marriage, 1955

before the District Judge, in which the petitioner and the

respondent entered into compromise and petitioner No. 1 started

living with the respondent/husband. But the respondent suffered

an accident and for four five months, he was bedridden.

Petitioner No. 1 constantly served him. At that time, she was

pregnant for about two-three months but after the respondent was

discharged from the hospital and gained his normal health, he

again maltreated the petitioner. Hence, she left the matrimonial

home. Respondent filed an application under Section 9 of the

Hindu Marriage Act, 1955. The respondent is running a Welding

Workshop of Tractor Trolly and agricultural appliances.

According to the petitioner, the respondent was earning five-six
lacs per year. Besides, he has other income from agriculture. She

prayed to provide Rs.5,000/- per month as maintenance for

herself.

4. The respondent denied all averments and submitted that

the petitioner No. 1 was never mal-treated for demand of dowry.

The petitioner No. 1/wife was under treatment for headache

immediately after marriage and she used to take lot of medicines.

In the year 2009, she did not return to the matrimonial home after

she left for her parental home during Diwali, 2009. When she did

not return for five-six months, the respondent approached the

Family/Re-conciliation Centre. After their re-conciliation, she

promised to live with the respondent and returned to the

respondent’s house. Again during Raksha Bandhan in the year

2010, she left the house of the respondent along with her

‘streedhan.’

5. Subsequently, an application under Section 9 of the Hindu

Marriage Act, 1955 was filed and compromise was arrived at.

The respondent suffered an accident and later the petitioner left

her marital house, stating that she is not willing to live with a

disabled person. The respondent had fracture on the hand and

legs. Subsequently, another application under Section 9 of the
Hindu Marriage Act was filed in which a decree for restitution of

conjugal right has been granted in favour of the

respondent/husband. The respondent is having a small welding

shop and he is not earning much. He is a disabled and he has no

means of earning.

6. Learned J.M.F.C allowed the petition and ordered that the

respondent should pay Rs.500/- to the minor petitioner and

Rs.1,000/- to the petitioner No. 1 every month as maintenance.

7. The petitioner preferred Criminal Revision No. 57/14 for

enhancement of maintenance whereas the respondent preferred

Criminal Revision No. 63/14 for setting aside the order passed by

the learned J.M.F.C.

8. Learned A.S.J vide order dated 22.02.2017 dismissed both

the revisions. The petitioner has preferred this petition on the

ground that the father of the respondent has admitted that the

respondent has a welding shop. Besides, he has also agricultural

income though a partition has not been affected.

9. It is claimed that the respondent is earning five-six lacs per

year and he also submits income tax return, therefore, the amount

of maintenance granted is meagre and the amount be enhanced.

10. On behalf of the respondent, the same is opposed and it is
stated that the respondent’s earning is less. He met with an

accident and suffered injuries. Therefore, he is not in a position

to make any payment. On the other hand, he has filed Criminal

Revision No. 3449/2017 for setting aside the order impugned.

11. Perused the record.

12. The income of the respondent has been admitted by

Khoobchand, the father of respondent. In his statement he admits

that the respondent earns from the Welding Workshop and also

have combined agricultural land which has not been partitioned.

13. The petitioner/wife has stated that the respondent earns

five-six lacs per year and furnishes income tax return but no such

income tax return has been produced.

14. It is also claimed by the petitioner that the petitioner No. 2

is studying in a school and his expenses cannot be met with

Rs.500/-. Hence, it be enhanced. It is also claimed that for the

treatment of petitioner No. 2 also she requires money.

15. In the case of Shamima Farooqui Vs. Shahid Khan,

(2015) 5 SCC 705, wherein Hon’ble the Apex Court has held that

:-

“The inherent and fundamental principle behind Section 125

Cr.P.C is for amelioration of the financial state of affairs as well
as mental agony and anguish, that a woman suffers when she is

compelled to leave her matrimonial home. The statute commands

that there has to be some acceptable arrangements so that she can

sustain herself. The principle of sustenance gets more heightened

when the children are with her. Be it clarified that sustenance

does not mean and can never allow to mean a mere survival. A

woman, who is constrained to leave with the marital home,

should not be allowed to feel that she has fallen from grace and

move hither and thither arranging for sustenance.”

16. In these circumstances, the petitioner No. 1/wife needs

financial support from the respondent/husband and also the

minor petitioner No. 2.

17. Keeping in view the living standard and the expenses for

the minor, for his education and health, there should be sufficient

provision. That being so, the maintenance is increased from

Rs.1,200/- to Rs.2,000/- for the petitioner No. 1-wife and from

Rs.500/- to Rs.1,000/- for petitioner No. 2- minor child till he

attains the age of majority.

18. This petition is allowed subject to the above modification.

(Sushil Kumar Palo)
JUDGE
awinash/

Digitally signed by AWINASH
CHANDRA
Date: 2017.12.16 12:59:06 +05’30’