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Jitendra Sharma vs Smt. Sushma Sharma on 18 April, 2018

1
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

Gwalior, Dated : 18.04.2018
Shri J.P. Mishra, Counsel for the applicant.
Shri B.S. Shrivastava, Counsel for the respondent.

This criminal revision under Section 397/401 of Cr.P.C.
has been filed against the order dated 16.5.2017 passed by
Principal Judge, Family Court, Morena in Case No.18/2014
by which the application filed by the respondent under
Section 125 of Cr.P.C. has been allowed and the applicant
has been directed to pay maintenance @ Rs.5000/- per
month from the date of application and also an amount of
Rs.2000/- has been granted by way of litigation expenses.

The necessary facts for the disposal of the present
revision in short are that, on 21.3.2013 the respondent
filed an application under Section 125 of Cr.P.C. on the
ground that the respondent was married to the applicant as
per Hindu Rites and rituals on 3.12.2011. An amount of
Rs.2,51,000/- was given in cash along with various
domestic items including jewelry. Since the applicant and
his family members were not satisfied by the dowry given
by the father of the respondent, therefore, they used to
harass her mentally as well as physically and they were
demanding additional dowry. On 18.11.2012, the applicant
left the respondent to her father’s house after assaulting
her and threatened that in case if she comes back without
the gold ornaments and a car, then she would be killed. It
was further alleged that prior to ousting the respondent
from her matrimonial house, the applicant and his family
members had snatched her entire ornaments and because
of beating the respondent had also sustained injuries. It
2
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

was further alleged that the applicant is a healthy man and
is running an electric shop and after deducting his expenses
he is earning a net profit of Rs.30,000/- per month and his
father has agricultural lands in village Kuwakhera, Rajrai
and Paliya and the total value of the said agricultural land is
about Rs.5-6 crores. Apart from that the applicant has
three residential houses and three shops in Agra and is
earning Rs.40,000/- and Rs.15,000-16,000/- by way of
rent whereas the respondent do not have any source of
income and she requires Rs.25,000/- per month by way of
maintenance as well as Rs.5,000/- towards litigation
expenses.

The notices were issued to the applicant. However, on
29.5.2014 it was observed by the Trial Court that the
registered notice sent to the applicant has been received
back with an endorsement that he is not available at the
house. Thus, it was observed by the Trial Court that it
appears that the notice has been served upon the applicant
and, therefore, he was proceeded ex parte. The ex parte
evidence of the respondent was recorded and the
application filed under Section 125 of Cr.P.C. was allowed by
order dated 2.7.2014. It appears that thereafter the
applicant filed an application under Section 126(2) of
Cr.P.C. for setting aside the ex parte order which was
allowed by order dated 25.2.2015 and accordingly the case
was restored to its original file.

The applicant filed his reply and accepted the factum
of marriage. All other adverse allegations were denied. It
was stated by the applicant that the marriage was
3
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

performed like an ordinary marriage and whatever
ornaments were given to the respondent at the time of
marriage are still with the respondent. The allegation of
demand of dowry and harassment was also denied. It was
also denied that on 18.11.2012 the respondent was left in
her parental house after beating her. On the contrary, it was
stated by the applicant that in fact the respondent is
residing in her parental house as per her own sweet will. It
was further stated that the respondent had never
performed her duties as a wife. On 22.11.2012, without
informing the applicant and his family members she went to
her parental house along with the ornaments as well as the
entire stridhan. On several occasions, he tried to bring the
respondent back but the parents of the respondent clearly
refused to send her back. It was denied that the applicant
is having any electric shop from which he is earning
Rs.30,000/- per month. The land in the name of his father
was also denied. This fact was also denied that the
applicant is having three residential houses and three shops
from which he is earning Rs.44000-45000/- per month.
This fact was also denied that the respondent does not have
any source of income. On the contrary, it was alleged that
by running the tuition classes the respondent is earning
Rs.15,000/- per month. It was further alleged that the
applicant is still ready and willing to keep the respondent
with him. The applicant is an unemployed person and is
dependent on his parents. The respondent has also filed an
application under the Protection of Women From Domestic
Violence Act. Accordingly, a prayer was made to reject the
4
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

application filed by the applicant under Section 125 of
Cr.P.C.

The respondent examined herself as PW-1, her father
Laxmi Narayan Sharma as PW-2.

The applicant examined himself as DW-1.

The Trial Court by order dated 16.5.2017 allowed the
application and awarded an amount of Rs.5000/- per month
from the date of the application i.e. 21.3.2013 and the
litigation expenses of Rs.2,000/- was also awarded.

Challenging the order passed by the court below, it is
submitted by the counsel for the applicant that in fact the
respondent is more educated than that of the applicant and
because of that she was unable to adjust herself in her
matrimonial house. It is further submitted that the monthly
income of the applicant is only Rs.5,000/- per month and
by awarding monthly maintenance at Rs.5000/- per month,
the Trial Court has in fact awarded 100% of the income of
the applicant by way of maintenance. It is further
submitted that the Trial Court should not have awarded the
maintenance from the date of application.

Per contra, it is submitted by the counsel for the
respondent that in fact it is the applicant who was cruel
towards the respondent. In different proceedings pending
between the parties, the respondent went to her
matrimonial house by way of reconciliation but on all
occasions because of the behavior of the applicant, she was
turned out of her matrimonial house. It is further submitted
that it is denied that monthly income of the applicant is
only Rs.5000/-. It is also denied that as the respondent was
5
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

more qualified than that of the applicant, therefore, she
was unable to adjust herself in the matrimonial house. It is
further submitted that the respondent is merely a graduate.
Since the applicant has failed in Class 12 th, therefore, it
cannot be said that the respondent was highly qualified in
comparison to the applicant. Furthermore, it is submitted
by the counsel for the respondent that even the applicant
has not stated either in his written reply or in his evidence
that the respondent is not able to adjust herself in her
matrimonial house because of difference in educational
qualification.

It is further submitted by the counsel for the
respondent that since it would be apparent from the order
sheets of the Trial Court that it is the applicant who is
responsible for the delayed disposal of the application filed
under Section 125 of Cr.P.C., therefore, the Trial Court did
not commit any mistake in awarding maintenance from the
date of the application.

Heard the learned counsel for the parties.
The contention of the applicant that since the
respondent is more educationally qualified than the
applicant, therefore, she was unable to adjust herself in the
matrimonial house is not supported by evidence on record.
Neither it is contended by the applicant in his written reply
nor it is stated by the applicant in his evidence. Even
otherwise, according to the statement of the applicant he
had failed in Class-12th whereas the respondent has passed
graduation.

Under these circumstances, it cannot be said that
6
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

there is a wast difference between the educational
qualification of the parties. Furthermore without there being
any pleading and without there being any evidence to the
effect that the respondent was unable to adjust herself in
her matrimonial house because of educational status, the
submissions made by the counsel for the applicant cannot
be accepted.

So far as the income of the applicant is concerned,
none of the parties have filed any document to establish the
income of each other. The applicant in his examination-in-
chief has stated that for the last few months he is driving
the ambulance of Pushpanjali Hospital and is earning
Rs.5000/- per month by way of salary. However, the
applicant has not placed any document issued by
Pushpanjali Hospital to show that he is working as a driver
of the ambulance and is earning Rs.5000/- per month.
Similarly, except by saying that the respondent is earning
Rs.15000-16000/- per month by giving tuition to the
children, no other material has been placed on record by
the applicant.

So far as the averments made by the respondent with
regard to the income of the applicant is concerned, she has
stated that the applicant is having an electric shop and is
also having three houses and three shops which have been
let out and is earning Rs.45000-46000/- per month by way
of rent from the said premises. Similarly, no document has
been placed on record by the respondent to support that
contention. Thus, it is clear that both the parties have not
succeeded in establishing the income of the applicant
7
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

beyond reasonable doubt but at the same time it can be
held that the applicant has tried to suppress his income.

Be that as it may.

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

“14. ………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 CrPC,
unless disqualified, is an absolute right.

* * * *

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 OnLine 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
8
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

not disclose to the Court the exact
amount of his income, the presumption
will be easily permissible against him.

19. From the aforesaid enunciation of
law it is limpid that the obligation of the
husband is on a higher pedestal when the
question of maintenance of wife and children
arises. When the woman leaves the
matrimonial home, the situation is quite
different. She is deprived of many a comfort.
Sometimes her faith in life reduces.
Sometimes, she feels she has lost the
tenderest friend. There may be a feeling that
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 give monetary comfort. That is
the only soothing legal balm, for she cannot
be allowed to resign to destiny. Therefore,
the lawful imposition for grant of
maintenance allowance.”

Thus it is clear that where the husband is able bodied
person and there is nothing on record that he has any
additional financial liability and considering the fact that the
wife is also entitled to enjoy the same status which she
would have otherwise enjoyed in her matrimonial house as
well as considering the price index, inflation rate and the
prices of goods of daily needs, it cannot be said that the
amount of Rs.5,000/- per month awarded by the Trial Court
by way of maintenance is on a higher side.

Accordingly, the maintenance amount of Rs.5000/-
per month fixed by the Trial Court is hereby affirmed.

It is next contended by the counsel for the applicant
that the Trial Court has committed material illegality by
awarding maintenance from the date of the application i.e.
9
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

21.3.2013.

Considered the submissions made by the counsel for
the applicant.

It appears that after the ex parte order dated
2.7.2014 was set aside, the respondent filed an application
for payment of maintenance amount for the intervening
period of 2.7.2014 to 25.2.2015. The said application was
allowed by order dated 5.3.2015. Being aggrieved by the
said order, the applicant filed a Criminal Revision
No.262/2015. This Court by interim order dated 22.4.2015,
passed the following order.

“22.04.2015
Shri Atul Gupta, learned counsel for
the petitioner.

Let notice be issued to the
respondent on payment of PF within three
working days failing which this petition
shall stand dismissed without reference to
the court.

Meanwhile, till the next date of
hearing, operation and effect of impugned
order dated 5.3.2015 passed in Case
No.331/2014 shall remain stayed subject
to the petitioner depositing the amount in
question, comprising of the arrears of the
interim maintenance for the period from
2.7.2014 to 25.2.2015, with the trial Court
which shall not be disbursed to the
respondent wife. This order shall be
10
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

further subject to the condition that
petitioner shall pay tentative interim
maintenance of Rs.3,000/- per month so
that the respondent wife can sustain.

The above said amount of interim
tentative maintenance should be paid on
27th of April, 2015 and on 27 th of every
subsequent month, failing which this order
shall stand vacated without reference to
the court.”

From the order sheets of the Trial Court, it is clear
that the application under Section 125 of Cr.P.C. was filed
on 21.3.2013 and the notices were issued to the applicant.
Inspite of various process fee paid by the respondent, the
notices could not be served on the applicant. Even the Trial
Court had called the explanation from the concerning Clerk
for delayed issuance of notices. By order dated 17.9.2013,
the Trial Court had even directed that the notice be served
through Superintendent of Police, Morena. Even the
explanation of the SHO of the concerning police station was
also called and ultimately by order dated 29.5.2014 the
Trial Court proceeded ex parte against the applicant
considering deemed service of notice and consequently an
ex parte final order was passed by the Trial Court on
2.7.2014. It is only after the ex parte order was passed,
the applicant rushed to the Court and filed an application
under Section 126(2) of Cr.P.C. and the application was
allowed and the matter was restored to its original file on
26.2.2015. On 8.4.2015, the applicant filed his reply to the
11
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

application for maintenance under Section 125 of Cr.P.C. on
23.6.2015. Thereafter the proceedings were taken up for
reconciliation but the said proceedings were dropped and
the application for grant of interim maintenance was
rejected by the Trial Court on 27.6.2015 in the light of
interim order dated 22.4.2015 passed in Criminal Revision
No.262/2015. By order dated 27.7.2015, the case was fixed
for recording evidence of the respondent on 20.8.2015. The
respondent was present however, as she was not feeling
well, therefore, she went back and the case was adjourned
to 27.8.2015. On 27.8.2015, the respondent was present
but the case was adjourned at the request of the applicant.
The case was then adjourned to 10.9.2015. On 10.9.2015,
the respondent as well as the applicant were present but
since the Court was vacant, therefore, the case was
adjourned. On 28.9.2015, the applicant sought time to
deposit the interim maintenance amount as directed by the
High Court. Another opportunity was given to the
respondent to examine the witnesses and the case was
adjourned to 26.12.2015 and thereafter it was adjourned to
18.1.2016. On 18.1.2016, the respondent was present but
the case was adjourned at the request of the respondent.
On 27.1.2016, the respondent was examined and the case
was adjourned for further cross-examination of the
respondent on 25.2.2016. On 25.2.2016, the respondent
was present but since the counsel for the respondent was
not present, therefore, the case was adjourned for cross-
examination and the case wad adjourned to 28.3.2016 and
on that day the cross-examination of the respondent was
12
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

over. The case was adjourned to 27.4.2016 and on that day
the witness of the respondent was present. However, as the
applicant had not paid the amount of interim maintenance
to the respondent, therefore, the case was adjourned to
26.5.2016. On 26.5.2016, some amount of interim
maintenance was paid and the respondent was directed to
keep her witnesses present and the case was adjourned to
27.6.2016. On 27.6.2016, it was expressed by the
respondent that she want to examine her father as a
witness whereas the counsel for the respondent has
suffered a paralytic stroke, therefore, a short time was
sought for keeping the witness of the respondent present
before the Court. On 29.8.2016, the respondent was
permitted to change her counsel and the case was fixed for
27.9.2016. On 27.9.2016, the witness of the respondent
was present, however the case was adjourned to
26.10.2016. On 27.10.2016, the witness of the respondent
was examined and cross-examined. In the meanwhile, an
interlocutory application was filed by the respondent that
the applicant has not complied the order of the High Court
by which it was directed to the applicant to pay
maintenance @ Rs.3000/- per month by way of interim
maintenance. On 26.11.2016, the respondent appeared
along with the applicant as she had gone to her
matrimonial house, on that day an advice was given to the
parties that they should live peacefully and harmoniously.
As the respondent had started living with the applicant as
his wife, therefore, the case was adjourned to 2.12.2016
and on the said date further opportunity was given to the
13
THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

parties. It appears that thereafter the respondent came
back from her matrimonial house and in the meanwhile the
interim maintenance was deposited by the applicant on
different dates and ultimately on 27.3.2017 the father of
the respondent was examined and cross-examined and the
case was fixed for examination of applicant’s witnesses. On
6.4.2017, the case was adjourned at the request of the
applicant and on 20.4.2017 he was examined and cross-
examined and on 20.4.2017 he closed his evidence.
Ultimately the final arguments were heard on 8.5.2017 and
on 16.5.2017 the final order was passed. Thus the order
sheets of the Trial Court reveal that initially the applicant
had avoided service of notice and ultimately an ex parte
order was passed thereafter the matter was restored to its
original file. It appears that in Criminal Revision
No.262/2015 which was filed by the applicant before this
Court it was directed by this Court by order dated
22.4.2015 that the applicant shall pay Rs.3,000/- per
month by way of tentative maintenance so that the
respondent/wife can sustain and on different dates the case
was adjourned because of non-payment of the said interim
maintenance. Thus it is clear that it cannot be said that
only the respondent is responsible for the delay in the
disposal of the application. Thus, this Court is of the
considered opinion that the Trial Court did not commit any
mistake by directing that the maintenance amount shall be
payable from the date of the application. However, the
amount of interim maintenance deposited by the applicant
from time to time shall be liable to be adjusted.

14

THE HIGH COURT OF MADHYA PRADESH
CRR No.594/2017
(Jitendra Sharma vs. Smt. Sushma Sharma)

Accordingly, the order dated 16.5.2017 passed by
Principal Judge, Family Court, Morena in Case No.18/2014
is hereby affirmed.

The revision fails and is hereby dismissed.

(G.S. Ahluwalia)
(alok) Judge

Digitally signed by ALOK KUMAR
Date: 2018.04.20 15:11:10 +05’30’

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