IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of decision : 09.04.2014
Raj Kumar… Petitioner
Sunita Devi and another… Respondents
CORAM: HON’BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.Som Nath Saini, Advocate for the petitioner.
Mr. Vivek Khatri, Advocate for the respondents.
REKHA MITTAL, J.(ORAL)
The present petition has been directed against order dated 04.03.2013 passed by the District Judge (Family Court), Hisar whereby the respondent-wife has been awarded maintenance @ Rs.5000/- and the minor son of the parties @ Rs.3000/-, in proceedings under Section 125 of the Code of Criminal Procedure (in short ‘the Code’).
The facts relevant for disposal of the present petition are that marriage of Raj Kumar (petitioner herein) was performed with Sunita Devi- respondent No.1 on 16.04.2003 at Hansi, District Hisar. Out of their wedlock, one son namely Gaurav (respondent No.2) was born, who is now residing with his mother.
As per allegations set up by the applicant-wife, her husband and his family members were not happy with the dowry given in the Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document marriage and they started harassing and maltreating her in connection with demand of motor-cycle. She was turned out of the matrimonial home after physical torture on 15.10.2006. She along with the minor child has been neglected to be maintained by the respondent-husband. With regard to income and sources of the husband, it is alleged that he is having ancestral agriculture land measuring 146 kanals 15 marlas in village Dadu and earning about Rs.5 lacs per annum from the land. He has a plot measuring 500 square yards at Narwana, two plots measuring 400 square yards each in village Dadu and constructed a big house on one of the plots. He is running a cloth showroom at Narwana and earning about Rs.40,000/- per month from the business. She has no source of income to maintain herself and the minor child, who is studying. She claimed maintenance allowance @ Rs.20,000/- per month.
The respondent filed the reply and in turn denied the averments that any demand of dowry was made or the applicant was harassed, tortured and taunted either for bringing less dowry or in connection with demand of dowry. He never refused to keep and maintain the applicants. Applicant No.1 is an educated lady, working in a private school, getting salary of Rs.5000/- per month and also earning more than Rs.10,000/- by taking tuition. He is hardly earning Rs.2000/3000/- per month which is not sufficient to meet his livelihood. He has denied having ancestral agriculture land in village Dadu, income from the land, plot measuring 500 square yards at Narwana or two plots at village Dadu. He has also denied running a cloth showroom at Narwana and earning Rs. 40,000/- per month from the business.
Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document The parties were permitted to lead evidence in support of their respective claims.
After having heard counsel for the parties and consideration of the matter in the light of allegations and evidence, the Family Court came to conclusion that the respondent-husband has refused and neglected to maintain his wife & the minor child and maintenance has been assessed at the aforesaid rate, payable by him from the date of filing of the application, without any order as to costs.
Feeling aggrieved by the order passed by the trial Court, the present petition has been preferred by the respondent-husband (petitioner herein).
Counsel for the petitioner has sought to assail award of maintenance to the wife primarily on the ground that she herself is a guilty spouse and left the matrimonial home without any reasonable or sufficient cause. To substantiate his contention, he has placed heavy reliance upon the judgment passed by the Court in matrimonial proceedings under Section 9 of the Hindu Marriage Act wherein Raj Kumar prayed for restitution of conjugal rights on the plea that his wife is staying away from the matrimonial home without any reasonable cause or excuse and she be directed to join his company. It is argued that the applicant-wife did not contest the proceedings knowing fully well that she has no case to meet the plea of the husband, therefore, the judgment and the decree passed in those proceedings by the District Judge, Jind on 10.04.2008 negates the claim of the wife of her entitlement to get maintenance under section 125 of the Code initiated in May, 2012 and culminated in the judgment dated Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document 04.03.2013. In support of his contention, counsel has relied upon judgment of this Court in Khursheed Ahmad Vs. Smt. Zakira, 2007(3)(Supp.)819.
Another submission made by counsel is that Sunita filed a criminal complaint against her husband and parents in-law for committing offence punishable under Sections 323, 498-A, 406, 307, 511, 120-B of the Indian Penal Code (in short ‘IPC’) instituted in August, 2007. The plea of Sunita that she was harassed, maltreated or tortured in connection with demand of dowry/scooter has been rejected by the Court in view of the judgment passed by the Sub Divisional Judicial Magistrate, Hansi on 14.01.2014 vide which Raj Kumar and others, accused in the case, have been acquitted of the offence. It is argued with vehemence that decree for restitution of conjugal rights passed in the year 2008 and decision in the criminal proceedings negatives the plea of Sunita in regard to allegations against her husband and his parents for committing offence under Sections 498-A, 406 IPC and it goes a long way to show that version of Sunita that she was turned out of the matrimonial home after giving beatings on account of demand of dowry is nothing but a bundle of lies and bereft of truth. According to counsel, as Sunita is staying away from the matrimonial home without any reasonable cause or excuse, there is no merit in her contention that Raj Kumar her husband has refused or neglected to maintain her and it disentitles her to claim maintenance from her husband.
Counsel for the respondents, on the contrary, contends that an ex-parte decree for restitution of conjugal rights without framing a specific issue, if the wife has refused to live with the husband without sufficient reason and specific findings on the issue after giving an opportunity to lead Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document evidence by the parties cannot form the basis to accept the plea of the husband that his wife is not entitled to get maintenance allowance. For this purpose, counsel has relied upon a Division Bench judgment of this Court in Ravi Kumar Vs. Santosh Kumari, 1997(3) RCR (Criminal) 3. He has further relied upon Haizaz Pashaw Vs. Gulzar Banu and another, 2002(3) ILR (Kerala) 149; Kamadi Bhavani Vs. Kamadi Lakshmanaswamy Lakshmana Rao, 1994(3) RCR (Criminal) 98 (Andhra Pradesh High Court); Smt.Kesari Devi Vs. Jagdev Singh, 2005(2) RCR (Criminal) 359 (Himachal Pradesh High Court); Brij Ballabh Pandey Vs. Smt.Israwati Devi, 1996(3) CCR 195 (Allahabad High Court); Maddina Subbamma Vs. Maddina Venkateswarlu and State, 1992 Civil Court Cases, 609 (Andhra Pradesh High Court); Mohd. Shakeel Vs. Smt. Shaheena, 1987 (1) RCR (Criminal) 569 (Delhi High Court); Sardar Surjeet Singh Vs. Smt. Rajendra Kaur, 1989 Civil Court Cases 571 (Allahabad High Court) and K.Narayan Rao Vs. Bhagyalakshmi, 1984(1) Karnataka Law Journal, 451 (Karnataka High Court).
With regard to judgment passed by the Judicial Magistrate in criminal proceedings, counsel would argue that the judgment has not attained finality because the complainant-Sunita Devi has a right to challenge the acquittal of the accused by filing an appeal before this Court under Section 378(4) of the Code. It is further argued that proceedings under Section 125 of the Code are summary in nature, therefore, it does not require full fledged trial as required in criminal proceedings. Another submission made by counsel is that in criminal proceedings, the standard of proof is much more higher than the civil proceedings to be decided on the Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document basis of preponderance of probabilities. It is argued with vehemence that judgment passed in the proceedings, in the circumstances, cannot be allowed to stand in the way of the applicant to claim maintenance as she would be rendered at the verge of starvation and vagrancy in case her claim for maintenance is rejected.
I have heard counsel for the parties and perused the records. Before adverting to the rival submissions made by counsels, it is appropriate to note that parties resided together for a period of more than 3 years and out of this wedlock, a male child is born. The child, at present, is staying with his mother, and the mother and the child are staying at the parental house of Sunita Devi.
Much stress has been laid by counsel for the petitioner that as Sunita herself is guilty of staying away from the matrimonial home without any reasonable cause, she cannot stake claim to get maintenance.
The Court cannot turn a blind eye that in Indian society, a girl with disturbed matrimony has no place. She becomes an eye sore for her parents especially brothers and their families. She is treated as a outcast by the members of the society and people living in the neighbourhood. In this background, it is difficult to accept to reason that a girl would leave her matrimonial home without any serious grievance to express and that too in the circumstances that she has a child from the wedlock. In the present case, the husband has not pleaded any special reasons for the wife to leave the matrimonial home if she was provided a congenial and comfortable atmosphere, at the risk of being treated shabbily by those who were earlier her near and dear ones before her marriage. This fact alone is sufficient to Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document create a doubt in the plea of the husband that the wife is staying away from the matrimonial home voluntarily, without any reasonable cause or excuse.
This brings the Court to the main contention of the petitioner that a decree for restitution of conjugal rights passed in favour of the petitioner in the year 2008, prior to institution of proceedings under Section 125 of the Code disentitles her to get maintenance. There is no denial that the decree for restitution of conjugal rights is an ex parte decree passed by the District Judge, Jind. No doubt, an ex parte decree passed by a competent Court of law has the same force as a decree passed after contest until and unless the ex parte decree is set aside in appropriate proceedings. Nevertheless, the question for adjudication is whether an ex parte decree of restitution of conjugal rights passed by the civil Court can stand in the way of criminal Court in granting allowance under Section 125 of the Code.
Counsel for the petitioner has relied upon a single Bench judgment of this Court in Khursheed Ahmad’s case (supra). In this case, the decree for restitution of conjugal rights set up by the petitioner-husband was not an ex parte decree but it was a decree passed after contest. The Court held that as per the finding recorded by the Civil Court, the petitioner-wife has left the matrimonial home without there being any sufficient reasons and the said decree has not been complied with so far. Therefore, in its view, the revisional Court has rightly held that the petitioner-wife was not entitled for maintenance as ordered by the trial Court until and unless the decree dated 28.11.2002 for conjugal rights is complied with by her. It was further held that the decision in Haizaz Pashaw Vs. Gulzar Banu and another, 2002 Crl.L.J. 3282 (Kerala High Court) cited by counsel for the wife is not Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document applicable in the facts of this case. In that case, the ex parte decree for restitution of conjugal rights was passed by the Court and it was observed that the wife was not given proper opportunity to defend the case. But the facts in the instant case are different. Here the decree for restitution of conjugal rights was passed after providing full opportunity to the wife to contest the suit filed by the husband.
As in the case at hand, the decree for restitution of conjugal rights is an ex parte decree without an opportunity to the wife to lead evidence to counter the case of the husband, the petitioner cannot gain any advantage to his contention from the judgment in Khursheed Ahmad’s case (supra).
The issue raised by the petitioner is no longer res integra in view of the judgment of Division Bench of this Court in Ravi Kumar’s case (supra) wherein the Court answered the question of law referred to it, in para 11 in the following terms:-
“11. We, therefore, answer the question of law referred to us as follows:
(1) The wife against whom a decree of restitution of conjugal rights has been passed by the Civil Court, shall not be entitled to claim allowance under Section 125 of the Code of Criminal Procedure if in the proceedings of restitution of conjugal rights before the Civil Court, a specific issue has been framed that whether without sufficient reason, the wife refuses to live with the husband, and the parties have been given an opportunity to lead evidence and thereafter specific findings are recorded by the Civil Court on this issue;
(2) But in case the husband has got an ex-parte decree of Davinder Kumar restitution of conjugal rights from the Civil Court, such 2014.04.26 14:45 I attest to the accuracy and integrity of this document decree shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125 of the Code of Criminal Procedure;
(3) In case the decree for restitution of conjugal rights has been obtained by the husband subsequent to the order for maintenance passed by the Magistrate under Section 125, Criminal Procedure Code then the decree ipsofacto, shall not disentitle the wife to her right of maintenance and in that case, the husband will have to approach the Court of the Magistrate under Sub- section (5) of Section 125 of the Code of Criminal Procedure for cancelling the order granting maintenance under Section 125, Criminal Procedure Code; and (4) The wife against whom decree of restitution of conjugal rights in the manner indicated in our first conclusion has been passed, will get the right to claim maintenance from the husband with effect from the date when she is granted divorce and she will continue getting this maintenance till she re-marries.” Counsel for the petitioner has failed to cite any contrary law. Keeping in view the authoritative decision rendered by the Division Bench of this Court and the judgments by various High Courts referred to by counsel for the respondent-wife, contention raised by counsel for the petitioner that an ex parte decree of restitution of conjugal rights can operate to deprive the wife of her right to maintenance, in view of the provisions of Section 125(4) of the Code, is devoid of merit and accordingly repelled.
Counsel for the petitioner made a vain attempt to challenge entitlement of the wife in view of the findings of the criminal court in a complaint filed by Sunita Devi. The judgment was rendered by the Court on 14.01.2014, therefore, Sunita Devi may challenge those findings by way of Davinder Kumar 2014.04.26 14:45 I attest to the accuracy and integrity of this document appeal before this Court, thus, those findings cannot be said to have attained finality. This apart, as has been rightly argued by counsel for Sunita, proceedings under Section 125 of the Code are summary in nature and the standard of proof in criminal trial stands on a much higher footing than evidence required for claiming maintenance under Section 125 of the Code. In this view of the matter, the petitioner cannot gain any advantage to his contention from findings recorded by Sub Divisional Judicial Magistrate, Hansi.
Before parting with this order, it is pertinent to mention that the petitioner has not challenged maintenance awarded in favour of the minor child of the parties. He only assailed grant of maintenance in favour of his wife. However, counsel for the petitioner has not made any submissions with regard to quantum of maintenance assessed by the trial Court.
For the foregoing reasons, the petition is dismissed leaving the parties to bear their own costs.
(REKHA MITTAL) JUDGE April 09, 2014.