1 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Criminal Revision No.780/2014
………Applicant: Smt. Sapna Shrivastava
Versus
………Respondent: Shiv Om Shrivastava
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None for the applicant.
Mr. S.S. Tomar, learned counsel for the respondent.
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Date of hearing : 04/01/2018
Date of Order : 10/01/2018
Whether approved for reporting : No
Law laid down:
Significant paragraphs:
ORDER
(10/01/2018)
Per Justice G.S. Ahluwalia,
This Criminal Revision under Sections 397, 401 of Cr.P.C.
has been filed against the order dated 6/9/2014 passed by the
Principal Judge, Family Court, Guna in M.Cr.C. No.83/2014, by
which the application filed by the applicant under Section 125 of
Cr.P.C. has been dismissed.
The necessary facts for the disposal of the present
application in short are that the applicant filed an application under
2 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
Section 125 of Cr.P.C. on the ground that she is the legally
wedded wife of the respondent having married to him on
13/4/2012 as per Hindu rites and rituals. Immediately after the
marriage the respondent started harassing the applicant because
of non-fulfillment of their demand of dowry. The respondent and
his family members started passing taunts and harassing the
applicant. Under compulsion and by beating the applicant, they
also obtained signatures of the applicant on various documents
and stamp papers. Whenever the applicant requested the
respondent to allow her to go to her parents house, she was not
allowed by the respondent. When the brother and the uncle of the
applicant had come to take her with them, then the respondent
had misbehaved with them and refused to send the applicant with
them. With great difficulties, after obtaining the signatures of the
applicant on some written documents and stamp papers as well
as the signatures of her brother and uncle the applicant was
allowed to go back to her parents’ home. The applicant is an
unemployed lady and has no source of income and is unable to
maintain herself, whereas the respondent belongs to a high class
society. The respondent is having private house and irrigated
lands. He is a practicing lawyer and his monthly income as a
lawyer is around Rs.20,000/- per month. The total income of the
respondent is around Rs.8-10 lacs per year and, therefore, a
prayer was made for grant of Rs.20,000/- per month by way of
3 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
maintenance.
The respondent filed his reply and denied the allegations. It
is mentioned that on 25/6/2012 the respondent was out of station
and when he came back, then he come to know that the applicant
has gone to her parents’ house on the pretext that her father is not
keeping well. The respondent went to her parents’ house on
8/7/2012 for taking her back, but she refused to come back. The
allegations of harassment or ill-treatment were denied. The
allegations of obtaining signatures on the stamp papers or some
written documents were also denied. It was mentioned that the
respondent is ready and willing to keep the applicant with him and
accordingly, he has also filed an application under Section 9 of the
Hindu Marriage Act. It was further stated that the respondent is
seriously ill for the last about one year and, therefore, he is not
able to practice as a lawyer.
It appears that the trial court by order dated 19/2/2013 had
directed the respondent to pay Rs.2,500/- per month by way of
maintenance. On 6/6/2014 the counsel for the respondent
pleaded no instruction and since the respondent was also not
present, therefore, he was proceeded ex parte. The evidence of
the applicant and her witnesses were recorded and the case was
fixed for final arguments. On 7/6/2014 an application was filed by
the respondent for setting aside the ex parte proceedings. It was
mentioned that the respondent has undergone an operation of his
4 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
spinal cord and the doctor has advised him bed rest for two
months and accordingly, by order dated 1/7/2014 the application
for setting aside the ex parte proceedings were allowed on
payment of cost of Rs.1,000/- and fixed the case for cross-
examination of the applicant and her witnesses. Thereafter, again
the respondent and his counsel did not appear before the trial
court and also did not deposit the cost as directed by the trial
court by order dated 1/7/2014 and accordingly, the trial court by
order dated 2/9/2014 heard the final arguments and passed the
final order on 6/9/2014 dismissing the application under Section
125 of Cr.P.C.
Challenging the order dated 6/9/2014 passed by the
Principal Judge, Family Court, Gwalior in M.Cr.C. No.83/2014, the
present revision has been filed.
In the memo of revision it has been averred that the trial
court has committed a mistake in dismissing the application.
Merely because the wife is a qualified lady would not ipso facto
dis-entitle her to claim maintenance from her husband because it
is the personal obligation of the husband to maintain his wife. The
conduct of the respondent was ignored by the trial Court because
in the proceedings under Section 9 of Hindu Marriage Act the
moment the applicant appeared in the said proceedings, the
respondent did not appear before the trial Court and got the
proceedings dismissed for want of prosecution.
5 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
The counsel for the respondent had appeared and argued
the matter. The case was heard finally and reserved for delivery of
judgment by order dated 4/1/2018. On 5/1/2018 the counsel for
the respondent has supplied a copy of the written reply. In the
reply it was mentioned that the respondent has also got a notice
published in the newspaper on 30/3/2014 with regard to the
pendency of the proceedings under Section 9 of Hindu Marriage
Act. Because of the injury sustained by him on his spinal cord, he
is unable to walk. He has no source of income. The respondent
has no cases to appear and has no standing in the Bar. He has no
independent source of income and he is undergoing the
treatment. Some documents have also been filed along with the
reply. The documents show that the respondent had undergone
some treatment which is reproduced below:-
“Screening whole spine (sagittal T2WI)
shows mild posterior bulging of C4-C5, C5-C6
C6-C7 intervertebral discs, indenting the anterior
thecal sac. Linear thin intramedullary hyperintense
signal is seen involving dorsal spinal cord
extending from D6 to D9 levels, suggestive of
prominent central spinal canal (about 1.5 mm
diameter).
OPINION: The MR findings reveal;s:
* Posterior protrusion of L3-L4
intervertebral disc, causing marked canal stenosis
and compression of bilateral traversing L4 nerve
roots with narrowing of neural foramina, abutting
bilateral traversing L3 nerve roots.
* Diffuse posterior bulging of L2-L3
intervertebral disc, causing canal stenosis and
compression of bilateral traversing L3 nerve roots.
* Diffuse posterior bulging of L5-S1
intervertebral disc, indenting anterior thecal sac
with narrowing of neural foramina, compressing
6 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]bilateral traversing L5 nerve roots.”
Heard the learned counsel for the respondent and perused
the record.
The trial Court has rejected the application filed by the
applicant under Section 125 of Cr.P.C. on various grounds
including that prior to marriage the applicant was working as a
guest faculty and after engagement under the pressure of the
respondent she has left the job. Since the applicant is a literate
lady and can obtain a job and nothing has been mentioned either
in the application or in her evidence that she has ever tried to
obtain any job and, therefore, she cannot be allowed to sit idle in
the house and claim maintenance from her husband. It is further
mentioned that the respondent has mentioned that he is not well
for the last one year and, therefore, he is not able to practice as
an Advocate and some documents have also been filed and he
has also mentioned in his reply that he is still ready and willing to
keep the applicant with him. It was also mentioned that since the
respondent has filed an application under Section 9 of the Hindu
Marriage Act, therefore, it is clear that in fact it is the applicant
who has left her matrimonial house without any reasonable reason
and accordingly, the application was dismissed.
So far as the question of entitlement of the applicant to
receive the maintenance amount is concerned, she has
specifically stated in her evidence that after the marriage, the
7 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
respondent and his family members started passing taunts and
the respondent also started beating her on the issue that sufficient
dowry has not been given. She was forced to sign several
documents and stamp papers. Rajendra Shrivastava (PW-2) has
stated that the applicant is his niece. As the financial condition of
the father of the applicant was not good, therefore, the marriage
expenses were borne by all the brothers. He also stated that when
he and the brother of the applicant went to the matrimonial house
of the applicant to take her back, then the respondent had
misbehaved with him and with great difficulties after obtaining the
signatures on several papers the applicant was allowed to
accompany this witness. As already pointed out that the
respondent was proceeded ex parte and, therefore, he has not
cross-examined the applicant. The ex parte proceedings were set
aside on payment of cost of Rs.1,000/- and the respondent did not
avail that opportunity and even did not deposit the cost and did
not appear for cross-examining the applicant and her witnesses.
Under these circumstances, the Court was left with no other
option but to proceed ex parte against the respondent as the
respondent has neither cross-examined the applicant and her
witnesses nor lead any evidence in his support, therefore, the
reply filed by the respondent cannot be taken note of because
there is nothing on record to show that the respondent was ever
ready and willing to keep the applicant with him.
8 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
So far as filing of an application under Section 9 of the
Hindu Marriage Act is concerned, it is clear that the respondent is
an Advocate by profession. The application under Section 125 of
Cr.P.C. was filed on 3/10/2012, whereas the application under
Section 9 of the Hindu Marriage Act was filed subsequent thereto.
On 29/4/2013 the counsel for the respondent pleaded no
instruction in the proceedings under Section 9 of the Hindu
Marriage Act, therefore, the said case was dismissed in default.
Another application under Section 9 of the Hindu Marriage Act
was filed by the respondent on 24/6/2013. Thus, it is clear that the
sole intention of filing the proceedings under Section 9 of the
Hindu Marriage Act was to keep those proceedings pending in
order to show willingness of the respondent to keep the applicant
with him. In the written reply, which has been filed by the
respondent on 5/1/2018, it is mentioned that the respondent is
facing trial under Sections 498-A, 506 of IPC as well as under the
Protection of Women from Domestic Violence Act. In the reply
also it is nowhere mentioned that as to what has ultimately
transpired in the proceedings under Section 9 of the Hindu
Marriage Act. Thus, it is not known that whether the application
filed by the respondent under Section 9 of the Hindu Marriage Act
is still pending or it has been decided. Further, the respondent has
taken a stand that he had suffered some injury on his spinal cord
and, therefore, he is unable to even walk. Alongwith the written
9 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
reply, which has been filed on 5/1/2018, the applicant had merely
filed the MRI report dated 11/2/2014 and a discharge summary
dated 16/2/2014. No other document of his treatment has been
filed by the respondent. Thus, it is not clear that after his
discharge from the hospital on 16/2/2014 whether the respondent
is still undergoing any treatment or not. Since no other document
has been filed by the respondent even after the case was finally
heard on 4/1/2018, it appears that the respondent is not
undergoing any treatment after 16/2/2014, otherwise he would
have certainly filed the prescription or any other document to show
that he is still undergoing the treatment and is unable to perform
the work of daily need. He has also not filed any document from
the Bar Association to show that he is not practicing as a lawyer
after sustaining injury on his spinal cord. There is no document to
show that he has ever got the licence suspended from the Bar
Counsel of Madhya Pradesh. Thus, it is clear that it is incorrect to
say that the respondent is unable to perform the work of his daily
routine and there is also nothing on record to show that he is not
doing his normal professional work as an Advocate. Further, from
the written reply, it is not clarified that when if he is not earning
anything, then how he is surviving and who is bearing his
expenses? Thus, this Court is of the view that it is incorrect to say
that the respondent is not able to work of his daily routine or he is
not practicing as an Advocate.
10 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
So far as the findings given by the court below that since the
applicant is an literate lady and she was working as a guest
faculty prior to her engagement, therefore, she has to work for her
survival and she cannot claim maintenance from her husband is
concerned, the said observation does not appear to be correct.
Merely because the wife can earn something for her survival
would not be sufficient to refuse maintenance. It is the personal
obligation of the husband to maintain his wife. Once the
respondent himself had forced the applicant to leave the job of
guest faculty, then he cannot compel the applicant to work for her
survival after her ouster from her matrimonial house. As the
allegations of harassment have not been denied by the
respondent by leading evidence, even in the written reply it has
been admitted by the respondent that he is facing trial under
Section 498-A of IPC, this Court is of the view that the applicant
had a reasonable reason for residing separately from the
respondent and accordingly, she is entitled for maintenance.
So far as the quantum of maintenance is concerned, as this
Court has already held that the respondent is working as an
Advocate and he has failed to prove that because of certain
medical complications, he is still unable to perform the work of his
daily routine and he has also failed to prove that he is not
practicing as a lawyer.
Thus, considering the price index, cost of the articles of daily
11 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
needs, inflation rate and the status of the parties, this Court is of
the view that the applicant is entitled for the maintenance @
Rs.3000/- per month. The maintenance amount shall be payable
from 6/9/2014, i.e. the date of the order passed by the Court
below.
Consequently, the order dated 6/9/2014 passed by the
Principal Judge, Family Court, Guna in M.Cr.C. No.83/2014 is
hereby set aside.
Accordingly the revision is hereby allowed. No order as to
costs.
(G.S. Ahluwalia)
Judge
10/01/2018
Arun*
Digitally signed by ARUN KUMAR MISHRA
Date: 2018.01.10 17:53:20 +05’30’
12 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]
HIGH COURT OF MADHYA PRADESH, JABALPUR,
BENCH AT GWALIOR
Criminal Revision No.780/2014
………Applicant: Smt. Sapna Shrivastava
Versus
………Respondent: Shiv Om Shrivastava
ORDER post for 10/01/2018
(G.S. Ahluwalia)
Judge
09/01/2018