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Sukhbeer Kaur vs Jatinder Singh on 29 January, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M No. 8864 of 2016 (OM)
Date of Decision: January 29, 2018

Sukhbeer Kaur..Petitioner(s)
Versus
Jatinder Singh @ Dimple..Respondent(s)

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Peeush Gagneja, Advocate for the petitioner.

None for the respondent.

ANITA CHAUDHRY, J.

This is a petition assailing the order dated 10.12.2014

(Annexure P-2) and order dated 03.10.2015 (Annexure P-3), passed on

the application filed under Section 125 Cr.P.C.

The marriage of the petitioner was solemnized with the

respondent on 13.06.2010. The allegations were that the petitioner was

turned out of the house some time in June 2011. It was claimed that the

respondent was a big agriculturist and had a dairy farm and finance

business and had income of Rs.1 lac per month. In her application, the

petitioner did disclose that she was a teacher but beyond that she did not

disclose her income.

The respondent pleaded that the petitioner was a

Government Teacher and her last drawn salary was over Rs.32,000/- i.e.

in October 2011 and she did not require any amount and she was guilty

of concealment of material facts. It was pleaded that the respondent came

to know that the petitioner was suffering from polio and this fact was

revealed only on the wedding night and the marriage was not

consummated and the petitioner was guilty of abandoning the respondent

within few days of marriage. It was pleaded that it was a simple marriage

and no gifts or Istridhan were exchanged.

Both the parties led evidence. From the side of the

petitioner, Sukhbir Kaur stepped into the witness box and also examined

her brother and her cousins. The respondent examined himself and

produced the salary certificate of the petitioner. The respondent also

examined Devi Lal who owns land adjoining the land of father of

Jatinder. He disclosed that the petitioner had stayed in the house of the

respondent only for 2 – 3 days.

The parties were married in 2010. The appointment letter of

the petitioner was produced in evidence to show that she was in

government job since 2001. The Magistrate noted that there was no

evidence with respect to the income of the respondent and he was not

doing any job. It also noted that there was no evidence that he was having

any business or any dairy farm or owned any land and finding the income

of the wife to be sufficient the petition was dismissed.

A revision was preferred by the wife, which too came to be

dismissed.

Counsel for the petitioner urged that the husband was

working before marriage and he had admitted in his statement that he

was doing a private job in a telecom company but he withheld the

information with respect to his salary and only admitted that he was

getting Rs.5,000/- per month and he immediately left the job the

following month and his income was more than Rs.1 lac and both the

Courts below have ignored the fact and have dismissed the application.

It was urged that simply because the wife was working, was not a good

reason for denying maintenance. Reliance was placed upon Simaben

Maheshbai Soni Vs. State of Gujrat R/CR.MA/ 18957/2015, DOD

21.10.2015 and Sunita Kachwaha and others Vs. Anil Kachwaha

2014(4) RCR (Criminal) 831.

It was urged that in Sunita’s Kachwaha’s case (supra), the

Apex Court had held that merely because the wife was earning was not

a ground to reject the claim and the Supreme Court had directed the

husband to pay maintenance to the wife.

It would be necessary to refer to Section 125 Cr.P.C.,
which reads as under:-
Section 125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such child is, by reason of any
physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a
Magistrate of the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such
monthly rate not exceeding five hundred rupees in the whole, as
such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female
child referred to in clause
(b) to make such allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor female child,
if married, is not possessed of sufficient means.

Explanation: – For the purposes of this Chapter:-
(a) ” minor” means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have
attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so
ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with
the order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for levying
fines, and may sentence such person, for the whole or any part of each
month’ s allowances remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment
if sooner made: Provided that no warrant shall be issued for the recovery of
any amount due under this section unless application be made to the Court
to levy such amount within a period of one year from the date on which it
became due:

Provided further that if such person offers to maintain his wife on condition
of her living with him, and she refuses to live with him, such Magistrate
may consider any grounds of refusal stated by her, and may make an order
under this section notwithstanding such offer, if he is satisfied that there is
just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or
keeps a mistress, it shall be considered to be just ground for his wife’ s
refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband
under this section if she is living in adultery, or if, without any sufficient
reason, she refuses to live with her husband, or if they are living separately
by mutual consent.

(5) On proof that any wife in whose favour an order has been made under
this section is living in adultery, or that without sufficient reason she
refuses to live with her husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order.

The object of granting maintenance is to prevent vagrancy

and compel the party to provide support to those who are unable to

support themselves. The phrase “unable to maintain her” would mean that

the means which are available to the wife are not sufficient/enough to

maintain herself. Under the law the burden is first placed upon the wife to

show that the means of her husband are sufficient.

In the present case, the wife failed to lead evidence to show

that the husband had sufficient means. It was claimed that he was earning

Rs.1 lac per month and had dairy and finance business besides it he was

getting salary from a telecom company. The wife did not summon any

person from the telecom company nor produced the Jamabandis to show

the area owned by him. She did not produce the income tax returns or the

bank statements. The wife on her part concealed her own income in her

petition. The husband brought her salary certificate on record to show that

she was getting monthly salary of over Rs.30,000/-. During the course of

submissions it was stated that the husband was a graduate.

Considering the evidence, it cannot be said that the wife was

not in a position to maintain herself. It had to be established that she was

unable to maintain herself. Even if it is taken that the husband was a

graduate, his income could be taken to be that of a skilled worker but

there is inseparable condition that had to be satisfied that the wife was

unable to maintain herself. The husband had placed material to show that

the wife was earning. The amount she is earning is enough to maintain

herself.

In Sunita Kachwaha’s case (supra), it found that the wife

was having a post graduate degree and was working as a teacher and also

working in the Health Department while the husband was an Engineer

and in government service and he was getting salary which was more

than the wife. After considering the salary and the economic condition of

the husband, the Family Court had awarded maintenance to the wife and

to the daughter, which was set aside by the High Court. The Supreme

Court allowed the appeal filed by the wife and set aside the order passed

by the High Court and restored the order of maintenance passed by the

Family Court.

There is nothing in the provisions to show that in

determining the maintenance and its rate the Magistrate has to inquire

into the means of the husband alone and exclude the means of the wife

altogether from consideration. Rather there is a definite indication in the

laws that the financial resources of wife are also a relevant consideration.

The words used in Section 125(1)(a) Cr.P.C. are ‘unable to maintain

herself’. The facts of each case have to be examined. In the present

case, the petitioner has been unable to show that she is unable to

maintain herself. She has not been able to show the income of the

husband. Therefore, I find no infirmity in the orders passed by both the

Courts below.

The petition is dismissed.

January 29, 2018 (ANITA CHAUDHRY)
Sunil JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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