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Smt. Malti Soni vs Ambika Prasad Soni on 8 February, 2018

THE HIGH COURT OF MADHYA PRADESH
CRR-1258-2017
(SMT. MALTI SONI Vs AMBIKA PRASAD SONI)

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Jabalpur, Dated : 08-02-2018
Shri R.S. Patel, learned counsel for the petitioner.
Ms. Tulika Gulatee, learned counsel for respondent.

This revision under Section 397 read with Section 401 of
Cr.P.C. has been filed to assail the order dated 12/04/2017 passed by

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the Family Court, Chhatarpur in MJC No.05/14, wherein it was

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directed to adjustment the maintenance granted and received to the

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petitioner/wife prior to the date of divorce.

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Briefly stated the case of the petitioner/wife is that, the petitioner
is the legally wedded wife of the respondent. On 29/04/1980, their
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marriage was solemnized. The petitioner/wife did not conceive,
therefore, the respondent started harassing her and treated her with
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cruelty. The petitioner was not given maintenance, hence she filed an
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application under Section 125 of Cr.P.C. before JMFC, Chhatarpur.
The same was allowed on 28/11/2013 and Rs.3,000/- p.m. was
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granted. A revision filed against this order was disallowed.

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Subsequently, the petitioner/wife filed an application under Section
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125 of Cr.P.C. for enhancement of the maintenance which was
dismissed but when a revision was preferred the amount of Rs.3,000/-
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p.m. was enhanced to Rs.5,000/- p.m. The petitioner/wife further filed
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an application stating that a gap has been developed in between her
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fourth and fifth lumber bone of the vertebral column, because of
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which she suffers unbearable pain. She has developed diabetes and for
meeting these expenses and treatment, she again filed an application to
enhance the maintenance. It is also claimed that the respondent is
earning Rs.58, 842/- p.m. Besides, he has 5.252 hectares of irrigated
agricultural land, from which he gets Rs.2,00,000/- per year. He also
owns a house at Bajrang Nagar, Chhatarpur situated in an area of 1600
sq.ft. He owns a Maruti car and is the Branch Manager of Gramin
Bank, Branch Rajnagar. On this application, the learned Family Court
after hearing both the parties allowed the enhancement of maintenance
to Rs.8,000/- p.m. but observing that in the case of Rohtash Singh Vs.
Ramendri others reported as (2000) 3 SCC 180 observed that, the
decree only of divorce was passed on 21/11/2013 in First Appeal
No.643/03 by this Court, the petitioner/wife is entitled to receive
maintenance from the date of decree for the decree has been obtained
on the ground of desertion.

The petitioner/wife has assailed the order dated 12/04/2017 on
the grounds that the respondent/husband and the petitioner/wife are
residing separately and unable to maintain herself. Therefore, the
petitioner filed earlier application which was allowed on 10/09/2008

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under Section 125 of Cr.P.C., maintenance was granted in MJC

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No.05/14. Subsequently, the maintenance was again enhanced by

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order dated 10/03/2016.

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Parties preferred criminal revisions i.e. Cr.R. No.830/16 and
Cr.R. No.913/16, which were disposed of by a common order dated
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29/11/2016 and the matter remanded back to the learned trial Court
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with a direction to decide the petition in respect of adjustment of the
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amount paid prior to passing of decree of divorce and also the plea of
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the wife and her documents for enhancement of the amount. The
learned Family Court passed the order on 12/04/2017, whereby the
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maintenance has been enhanced to Rs.8,000/- but the entitlement of
the maintenance amount has been allowed from 21/11/2013 i.e. the
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date of decree of divorce. The amount which has already been paid
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and the amount of maintenance received by the petitioner/wife since
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2008 cannot be adjusted. It is claimed that the provision of
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maintenance has been made for social justice as observed in the case
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of Ramesh Chander Kaushal Vs. Veena Kaushal reported as AIR
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1978 SC 1807, it is contended that the petitioner/wife is suffering from
cancer and she has been operated upon and she needs financial support
for her treatment which is approximately Rs.1,50,000/-. In this regard,
she has filed certain documents including the certificate, dated
02/02/2018 issued by Dr. Arpan Mishra, Onco Surgeon. The petitioner
further claimed that if the amount is adjusted, the petitioner will not
get any maintenance from the respondent/husband for the next 3-4
years and she will be starved to death.

Per contra, it has been vehemently argued that the counsel for
the petitioner was working in the Radio Station as a causal announcer
and she is not “hand to mouth”. The petitioner/wife deserted the
respondent/husband and, therefore, the petitioner/wife is not entitled to
receive any amount as maintenance. She has without any sufficient
cause left the matrimonial home, hence, she is not entitled to receive
any amount as maintenance prior to the date of decree of divorce
referring to the Paragraph of the case of Rohtash Singh (supra), it is
contended that the order impugned is justifiable and do not call for any
interference.

During the course of the argument, counsel for the respondent

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has also relied in the case of Dr. G. Sivaraman Vs. P. Muthukumari

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reported as 2014 (1) MWN (Cr.) 93, in which the Single Bench of

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Madras High Court has held that husband obtained decree for divorce

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on the ground of desertion and cruelty on the part of wife. Wife is not
entitled to receive maintenance prior to the date of decree of divorce
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and held entitled for maintenance only from the date of decree of
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divorce.

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Heard the counsels.

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Perused the record.

The present is not a case of maintenance simpliciter but the
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maintenance has been awarded right from 23/02/2011 Rs.1,000/- p.m.
was granted as maintenance, the same was enhanced to Rs.3,000/-

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p.m. on 28/11/2013 and subsequently, by the order impugned, the
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same has been enhanced to Rs.8,000/- p.m. The respondent as the
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Manager of the Madhya Bharat Gramin Bank, besides his landed
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property. No doubt the decree of divorce was granted on 21/11/2013
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in F.A. No.643/03, where as the respondent had earlier preferred Cr.R.
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No.913/2016 before this Court challenging the order dated
10/03/2016. The matter was remitted back to the Family Court for
consideration afresh.

In the case of Rohtash Singh (supra) at Paragraph 12, the Apex
court has held that, “the learned counsel for the petitioner then
contended that the maintenance has been allowed to the respondent
from the date of the application. The application under Section 125 of
Cr.P.C. was filed by the respondent during the pendency of the civil
suit for divorce under Section 13 of the Hindu Marriage Act. It is
contended that since the decree of divorce was passed on the ground
of desertion by the respondent, she would not be entitled to
maintenance for any period prior to the passing of the decree under
Section 13 of the Hindu Marriage Act. To that extent, the learned
counsel appears to be correct. But for that short period, we would mot
be inclined to interfere”.

The Apex Court had occasioned to consider that divorce passed
on desertion is no ground to deny maintenance. This plea of the
husband was rejected that once a decree for divorce was passed
against the respondent and marital relations between the petitioner and

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husband came to an end, the mutual rights, duties and obligation

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should also come to an end and so the wife would no longer entitled

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for maintenance.

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The learned Apex Court has not laid down any principle that the
wife is not entitled to receive maintenance prior to the date of decree
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of divorce but the learned counsel argued for the husband and the
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Apex Court has observed that the learned counsel appears to be
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correct. The Apex Court has not given a definite finding that the wife
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is not entitled to receive maintenance. With due respect, the judgment
of Madras High Court in Dr. G. Sivaraman (supra), the observation
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of Hon’ble Apex Court has not properly construed.

It is not disputed that the petitioner is the wife of the respondent.
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It is not disputed that she is living separately since 2008. It is not
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disputed that the respondent was working as a Branch Manager
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Gramin Bank. The petitioner/wife has no definite income. Even if it is
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taken that she is working as a causal announcer in the Radio Station
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that is not a permanent job and the causal announcer gets a
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remuneration for the time she works. It is not certain that she works
everyday. It is also to be seen that meager amount she received does
suffice her needs. The respondent/husband has sufficient income.

The Apex Court in the case of Shamima Farooqui Vs. Shahid
Khan reported in 2015 (5) SCC 705, the Hon’ble Apex Court 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 woman suffers when she is compelled
to leave her matrimonial home. The statute commands 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
the marital home, should not be allowed to feel that she has fallen
from grace and move hither and thither arranging for sustenance. As
per law, she is entitled to lead a life in the similar manner as she
would have lived in the house of her husband. And that is where the
status and strata of the husband comes into play and that is where the
legal obligation of the husband becomes a prominent one. As long as

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the wife is held entitled to grant of maintenance within the parameters

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of Section 125 of Cr.P.C., it has to be adequate so that she can live

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with dignity as she would have lived in her matrimonial home. She

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cannot be compelled to become a destitute or a beggar”.

It was further observed that when the women leave the
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matrimonial home, the situation is quite different. She is deprived of
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many a comfort. Sometimes her faith in life is reduced. Sometimes,
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she feels she has lost the tenderest friend. There may be a feeling that
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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
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give monetary comfort. That is the only soothing legal balm, for she
cannot be allowed to resign to destiny. Therefore, the lawful
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imposition for grant of maintenance allowance. Grant of maintenance
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to wife has been perceived as a measure of social justice. An order
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under Section 125 of Cr.P.C. can be passed if a person despite having
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sufficient means neglects or refuses to maintain the wife. Sometimes,
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a plea does not have a job or his business is not doing well. These are
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only bald excuses and, in fact, they have no acceptability in law. If the
husband is healthy, able-bodied and is in a position to support himself,
he is under the legal obligation to support his wife, for wife’s right to
receive maintenance under Section 125 Cr.P.C., unless disqualified, is
an absolute right.

In the present case, the allegation of the petitioner is that after
her marriage when she was not conceived, the respondent/husband
treated her with cruelty and she was harassed because of the
harassment and cruelty, she had to live at her parental house. This is
sufficient ground for living separately.

The finding of the First Appeal No.643/03 is a different
proceeding in which she might not have satisfied the court so as to the
desertion or might have not taken keen interest in refuting the charges
of desertion. In the present case because of the reasons for living
separately by the petitioner/wife has been proved and consequently
maintenance was granted on 28/03/2011, 28/11/2013 and 10/03/2016.
Therefore, it would be improper to adjust the maintenance already
granted to her in earlier orders. If this amount is allowed to be
adjusted, it would be throwing the petitioner/wife to her destiny and to

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be a destitute, which is not the object of the provision of maintenance

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under Section 125 of Cr.P.C. Though the proceeding under Section

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125 of Cr.P.C. are not punitive, the object is to speedy remedy by a

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summary proceeding to enforce liability in order to avoid vagrancy.
The provision has to be construed liberally as the primary object is to
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give social justice to the women and children and to prevent
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distribution and vagrancy by compelling those who can support those
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who are unable to support themselves. The provision provide a speedy
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remedy to those who are in distressed, therefore, there are intend to
achieve social purpose, Section 125 of Cr.P.C. has been enacted.

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With this basic idea that after the marriage, it is the duty of the
husband to provide shelter and maintenance to the wife and if he
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neglects the wife is legally entitled to get the maintenance through the
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Court by petition under Section 125 of Cr.P.C.
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It would be appropriate to hold that the technicality of a civil
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proceeding are not attracted to proceeding under this Section, Punjab
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and Haryana DB in the case of Chanan Singh Vs. Jagir Kaur
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reported as 1983 Cr.L.J. 1570. In a proceeding under Section 125 of
Cr.P.C., a strict rule of pleading and evidence also are not insisted
upon in such cases because of the position of those who are
approaching Courts and the social purpose behind the provision.

This Court under these circumstances and keeping in view the
needs of the petitioner and her ailment, hold that adjusting the earlier
maintenance awarded prior to 21/11/2013, would amount to injustice
to the petitioner/wife, hence, the order dated 12/04/2017 passed by the
Family Court, Chhatarpur is set aside that extend only. It is made clear
that the petitioner is entitled to receive maintenance in accordance
with Paragraph 21 of order dated 12/01/2017.

(SUSHIL KUMAR PALO)
JUDGE

Digitally signed by
RASHMI RONALD VICTOR
Date: 2018.02.14 22:29:59

-08’00’
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