Mohd. Shiraj Javed vs The State Of Madhya Pradesh on 11 May, 2017

HIGH COURT OF MADHYA PRADESH : JABALPUR

SINGLE BENCH : JUSTICE MS. VANDANA KASREKAR

CRIMINAL REVISION NO.175 OF 2017

Mohd. Shiraj Javed

vs.

The State of M.P. and another

————————————————————————————
Shri Manish Datt, learned senior counsel with Shri Rahul
Sharma, Advocate for the applicant.
Shri Rajkamal Chaturvedi, learned counsel for the non-
applicant.
————————————————————————————
O R D E R

(11/05/2017)

The applicant has filed the present criminal revision
challenging the order dated 16/12/2016 passed by the Principle
Judge, Family Court, Bhopal in M.Cr.C.No.23/2015 by which
the Family Court has allowed the application preferred by the
non-applicant under Section 125 of the Cr.P.C. and granting
the monthly maintenance @ Rs.75,000/- per month and
educational expenses @ Rs.25,000/- per month to the non-
applicant.

2. Brief facts of the case are that the non-applicant/wife has
preferred an application under Section 125 of the Cr.P.C.
before the Principle Judge, Family Court, Bhopal seeking
monthly maintenance of Rs.1,00,000/- and Rs.15,00,000/- per
annum for her studies in Dental College at Bhopal. It is alleged
that the non-applicant was married with the applicant on
05/10/2012 according to Muslims customary rites and traditions
and, thereafter she lived at her matrimonial home. The
applicant/husband is reckoned one of the richest and affluent
person in the city of Bhopal. The father of the applicant was bit
industrialist of Bidi manufacturing in India and after the death
of the father of the applicant, he is successor of the huge
property and business at Bhopal. It has been further alleged
that the non-applicant stayed at her matrimonial home only for
six months and during that period she was being subjected to
cruelty and mental and physical harassment by the applicant
and other family members. Thereafter, she went to her parental
home for appearing in the examination. It has further been
alleged in the application that when the non-applicant went to
her matrimonial home for the second time, she was being ill-
treat and subjected to inhuman treatment by the applicant and
his family members. Thereafter, she returned to the parental
home and doing BDS course in Medical College Bhopal. It is
further stated that when the applicant and matrimonial relative
did not take care of the non-applicant, she was constrained to
file a report under Section 498-A of the IPC. The non-applicant,
thereafter, filed an application under Section 125 of the Cr.P.C.
claiming maintenance @ Rs.1,00,000/- per month and also
prayed for Rs.15,00,000/- for her BDS studies. She has stated
that the applicant is only issue of his parents and earns
Rs.10,00,000/- per month from the Bidi business, he has a
bungalow at VIP Road Bhopal worth of Rs.5 crores, there is a
15,000 sq.ft. plot at Lalghati Main Road and having TVS show
room. On the basis of the aforesaid, she claimed the
maintenance as stated above.

3. The applicant/husband has filed the reply to the said
application and denied the allegations made in the application.
The non-applicant denied that non-applicant at her own left the
matrimonial home and residing along with her parents. The
non-applicant used to cause mental pressure to the applicant to
live separately from his parents and she often used to quarrel
with his parents. She had lodged a false and fictitious report
alleging demand of dowry against the applicant. The applicant
further submitted that so far as the Bidi Firm is concerned, the
said firm has 19 partners with different shares. The said firm
is running in loss. He denied that the applicant is earning
Rs.10 lakhs per month in Bidi business. He filed a copy of the
income tax return showing the annual income of the applicant.
It is further submitted that the non-applicant had lodged FIR
against the applicant and his family members under Section
498-A of the IPC and under Sections 3 4 of Dowry
Prohibition Act, 1961. The learned Judicial Magistrate First
Class vide order dated 26/08/2016 acquitted the applicant as
well as his family members from the said charges. The trial
Court after hearing both the parties and taking into
consideration the evidence produced by the parties had
allowed the application preferred by the non-applicant thereby
awarding the maintenance of Rs.75,000/- per month to the non-
applicant and Rs.25,000/- towards the educational expenses.
Being aggrieved by that order, the applicant has filed the
present revision before this Court.

4. The learned senior counsel appearing on behalf of the
applicant submits that the amount of maintenance awarded by
the Family Court is on higher side. He submits that in absence
of any documentary proof, the Family Court has passed the
order only on assumptions and presumptions. He further
submits that the non-applicant is living at her parental home
and there is no iota of evidence demonstrates that she was
subjected to cruelty or ousted from the house. It has further
been alleged that a false case was registered under Section
498-A of the IPC, against the applicant and his parents in which
the applicant was acquitted by the trial Court. The Family Court
has further erred in assessing the income of the applicant. He
submits that without considering the income tax returns, which
is available on record, the income of the applicant has been
shown to be very excessive. He further submits that the
property which is shown to be in the name of the applicant
which enumerated by the non-applicant in the application under
Section 125 of the Cr.P.C., is not in the exclusive name of the
applicant. There are more than 16 shares holders in the
property and there is no cogent and plausible documents to rely
upon the oral submissions made by the non-applicant.

5. Learned senior counsel for the applicant further argues
that the maintenance under Section 125 of the Cr.P.C.,
provides for food and clothing only and no maintenance can be
awarded for education or other expenses. He submits that in
the present case, the Family Court has erred in awarding the
maintenance towards the educational expenses to the non-
applicant. He relied on a judgment passed by this Court in the
case of Subhas Chandra Kanwar vs. Kumari Anshu,
reported in 1983 Weekly Notes, 130, and Vijay Shankar vs.
Shashi Prabha, reported in 1984 Weekly Notes, 62, and the
judgment passed by the Apex Court in the case of Chaturbhuj
vs. Sita Bai, 2008(1) MPLJ (Cri) 398 .

6. On the other hand, learned counsel appearing on behalf
of the respondent supports the order passed by the Family
Court. He submits that there is an ample evidence on record to
show that the applicant is earning Rs.10 lakhs per month. He
owned number of immovable properties. He further submits
that the applicant is studying in BDS course and she has no
source of income and, therefore, the Family Court has rightly
granted the maintenance @ Rs.25,000/- per month towards her
educational expenses. In view of the aforesaid, he submits that
revision be dismissed.

7. I have heard learned counsel for the parties and perused
the record as well as the order passed by the Family Court.

8. From perusal of the order, it reveals that the applicant
and non-applicant had entered into the marriage on 05/10/2012
as per Muslims rites at Bhopal. As per the allegations made by
the non-applicant, after some days of marriage, applicant as
well as his parents started physical as well mental harassment
to the non-applicant and demanded dowry, therefore, she made
a report to the police and the matter went before the trial Court.
However, the trial Court has acquitted the applicant and his
parents from committing the offence under Section 498-A of the
Cr.P.C..

9. So far as the income of the applicant is concerned, the
trial Court has assessed the income of the applicant on the
basis of the documents produced by the non-applicant. The
applicant, however, denied that he is the owner of the entire
property. Applicant has also produced the Income Tax return
showing his income before this Court which shows that the
applicant is earning Rs.2,14,908/- per annum for the years
2016-17.

10. So far as the income from the partnership firm for doing
the business of Bidi is concerned, the applicant has filed a copy
of the agreement of partnership. As per the said agreement,
there are about 20 partners of the said firm and applicant is
having 15.34% shares in the said firm. Thus, on the basis of
these documents which are filed by the applicant before this
Court, the income assessed by the Family Court is on higher
side.

11. So far as the award of Rs.25,000/- per month towards the
educational expenses is concerned, this Court in the case of
Subhas Chandra Kanwar (supra) has held as under :-

“The applicant is father of the non-
applicants who are minor children. The non-
applicant’s, through their mother, filed an
application against the applicant for an order of
maintenance under Section 125, of the Code of
Criminal Procedure. The application was
opposed by the applicant. The Magistrate, vide
order dated 06/10/1980, allowed the application
and ordered the applicant to pay maintenance
allowance at the rate of Rs.200, per month for the
maintenance of the non-applicant with effect from
06/11/1978, i.e. the date of the application.
Revision-petition filed by the applicant in the
Session Court was dismissed on 15/02/1981.
Being aggrieved thereby, the applicant has filed
the present application under Section 482 of the
Cr.P.C.

Held : The amount of maintenance was
determined by the Magistrate under different
heads as mentioned below.
(i) Food including mil Rs.100, per month;
(ii) Clothes Rs.30, per month;

(iii) For education of the non-applicant Rs.40,
per month and

(iv) Other necessary expenses Rs.30, per
month.

The learned counsel for the applicant has
confined his arguments only to the quantum of
maintenance. His contention is that the
maintenance contemplated in Section 125, ibid is
food and clothing and it does not include
education and other matters. That being so,
accordingly to him, no amount could be ordered
for education and other expenses and, thus, the
amounts mentioned at item Nos. (iii) and (iv)
above deserve to be omitted. His contentions are
supported by decision in the case of H. J.

Mascreen vs. Dr. (Mrs.) R.K. Mascreen (AIR
1956 Madras 154). No decision to the contrary
has been placed before me. That was a case
under Section 488, of the Code of Criminal
Procedure, 1898. Similar provisions are
introduced by section 125 of the Code of Criminal
Procedure, 1974, by which the Act of 1898 was
repealed. Therefore, the fact that the case was
under Section 488, of the old Code while the
present case is under Section 125, of the new
Code does not make any difference. The
following observations made in that case are
noteworthy.

“….The maintenance contemplated in
that section is food and clothing, It does
not include education and other matters.

The Court can order only as much as is
necessary for the food and clothing of
the children.”

Thus, I hold that the amounts mentioned at item
Nos. (iii) and (iv) above are liable to be struck
down. That reduces the amount of maintenance
to Rs.130, only per month. Application allowed.”

As per the said judgment, the non-applicant is entitled to
get only the maintenance for food and clothing and no
maintenance can be awarded for education or other expenses.

12. The Apex Court in the case of Chaturbhuj (supra) in
para 7 has held as under :-

“7. Under the law the burden is placed in the
first place upon the wife to show that the
means of her husband are sufficient. In the
instant case there is no dispute that the
appellant has the requisite means. But there is
an inseparable condition which has also to be
satisfied that the wife was unable to maintain
herself. These two conditions are in addition to
the requirement that the husband must have
neglected or refused to maintain herself. The
appellant has placed material to show that the
respondent-wife was earning some income.
That is not sufficient to rule out application of
section 125, Criminal Procedure Code. It has to
be established that with the amount she earned
the respondent-wife was able to maintain
herself.”

As per the said judgment, the burden is placed in the first
place upon the wife to show that the means of her husband are
sufficient and she is unable to maintain herself.

13. Thus, in light of the said judgment passed by the
Apex Court, burden is on the wife to proof the income of the
husband. However, in the present case, although the non-
applicant has produced certain documents to show that
husband is having huge property, but husband has denied the
same and submits that the said property is in the joint name of
the family. In view of the aforesaid, the amount of maintenance
awarded by the Family Court appears to be on higher side.
Accordingly, the amount awarded by the Family Court towards
educational expenses is hereby set aside and the amount of
Rs.75,000/- awarded towards maintenance is reduced to
Rs.50,000/- per month. The said amount will be payable to the
non-applicant from the date of the order passed today.

Certified copy as per rules.

(MS. VANDANA KASREKAR)
JUDGE

manju
HIGH COURT OF MADHYA PRADESH : JABALPUR

SINGLE BENCH : JUSTICE MS. VANDANA KASREKAR

CRIMINAL REVISION NO.175 OF 2017

Mohd. Shiraj Javed

vs.

The State of M.P. and another

O R D E R

Post it for :11/05/2017

(MS. VANDANA KASREKAR)
JUDGE
(09/05/2017)

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