1 Cr. R. No.632/2017
IN THE HIGH COURT OF MADHYA PRADESH :
INDORE BENCH
Criminal Revision No.632/2017
Ashish S/o Vinod Hardas,
aged 36 years, Occupation Service
R/o B-18, Sagar Parisar,
Gulmohar Colony,
District-Bhopal(M.P.) Petitioner
-V/S-
Harsha W/o Ashish Hardas
Aged 33 years, Occupation Service
R/o Flat No.1, Shanti Gardan
Apartment, Limbodi, Khandwa Road,
District-Indore (M.P.)
Respondent
………………………………………………………………………………………………..
Present:- Hon’ble Shri Justice C.V. Sirpurkar
…………………………………………………………………………………………………
Shri Satish Tomar, counsel for the petitioner.
Shri Yashpal Rathore, counsel for the respondent.
…………………………………………………………………………………………………
ORDER
(09-04-2018)
1. This criminal revision is directed against the
interlocutory order dated 12.04.2017 passed by the Court of
Additional Principal Judge, Family Court, Indore in Case
No.782/2016; whereby learned Judge had allowed the
application for interim maintenance filed under Section 125 of
the Code of Criminal Procedure by respondent wife Harsha
2 Cr. R. No.632/2017
and directed petitioner-husband Ashish to pay monthly interim
maintenance to her at the rate of Rs.7500/- per month till the
disposal of the petition filed by her under Section 125 of the
Code of Criminal Procedure.
2. Respondent Harsha moved an application under Section
125(1) of the Code of Criminal Procedure against petitioner-
husband Ashish in the Court of I Additional Principal Judge,
Family Court, Indore under Section 125 of the Code of
Criminal Procedure for maintenance. She also moved an
application for interim maintenance on 10.08.2016. It was
averred in the petition that respondent-wife is unable to
maintain herself. The petitioner-husband earns more than Rs.
62,000/- per month as Manager in Passport Department at
Raipur (Chhattisgarh). He has deserted respondent-wife
without any reasonable ground. The respondent-wife has
already lost her father and is dependent upon her younger
brother and sister for maintenance. Therefore, it was prayed
that petitioner-husband be directed to pay monthly interim
maintenance at the rate of Rs.25,000/- per month.
3. In reply, the petitioner-husband stated that respondent-
wife is highly qualified. She has acquired Master’s Degree in
Applied Mathematics and is currently doing her Ph.D. under
the guidance of one Dr. Deepak Singh, who is Scientist in
Regional Science Centre. She has been earning since the year
2006. She serves in Swami Vivekanand Technical University,
Chhattisgarh. She had also served in Rungta College of
Engineering and Technology at Bhilai earning a salary of
Rs.23,278/- per month plus dearness allowance. She has a PAN
card and income tax was deducted at source from her salary
for the financial year 2015-2016. She has taken a home loan in
3 Cr. R. No.632/2017
her name from Axis Bank, Indore. She owns a house in Shree
Krishna Avenue Phase I, Indore and had paid property tax of
Rs.1600/- in the year 2015-2016. She had also submitted
Income tax return for the assessment year 2013-2014 on the
gross income of Rs.2,58,742/-. She also has bank accounts in
Bank of Baroda, Kotra Sultanabad Branch, Bhopal as also in
ICICI Bank, Raipur. As such, she is a woman of means and can
easily maintain herself. She has declined to live with the
petitioner without any ground in spite of a decree for
restitution of conjugal rights passed in favour of petitioner-
husband by Principal Judge, Family Court, Raipur in Civil Suit
No.454/2016 on 10.05.2017. Therefore, it was prayed that the
application for interim maintenance be dismissed.
4. Learned Principal Judge, Family Court allowed the
application for interim maintenance mainly on the ground that
the petitioner had failed to produce any document in order to
establish that respondent-wife was in employment on the date
of the application and was actually earning. She may have had
capacity to earn and may have been employed in the past but
that does not disqualify her from receiving maintenance under
Section 125 of the Code of Criminal Procedure. Citing various
authorities, the trial Court held that if the wife is earning
something to eke out a living, it cannot be said that she is
capable of maintaining herself; therefore, the trial Court
directed the petitioner-husband to pay a sum of Rs.7500/- per
month by way of maintenance till the disposal of the petition.
5. Learned counsel for the respondent has filed copy of
judgment dated 10.05.2017 passed by Principal Judge, Family
Court, Raipur in Civil Suit No.454/2016; whereby an ex parte
decree has been passed for restitution of conjugal rights in
4 Cr. R. No.632/2017
favour of the petitioner-husband. A coordinate bench of this
Court in the case of Babulal vs. Sunita, 1987 Cr.L.J. 525, has
held that social object that Section 125 of the Code of
Criminal Procedure is intended to serve, compels liberal
construction and in the absence of any statutory bar, the wife’s
application for maintenance under that section cannot be
rejected merely because the husband had obtained a decree of
restitution of conjugal rights against her and she declined to
comply with it. The second proviso to Section 125(3) is in fact
intended to meet such a case and Magistrate can decide if her
refusal is justified. In the later case of Revalal vs. Urmila,
ILR (2009) MP 2111, it has been held that husband’s illicit
relations with another woman was sufficient ground for her
refusal to live with her husband in spite of decree for
restitution of conjugal rights in favour of the husband and the
wife was held to be entitled for maintenance. However, in the
later case of Renu Vs. Hiralal, 2002(2) MPLJ 117, a
coordinate bench of this Court on facts has held that since
there was a decree for restitution of conjugal rights and the
wife was declining to join the company of her husband without
assigning any reason, she was not entitled to interim
maintenance.
6. Be that as it may, the fact remains that there is an ex
parte decree for restitution of conjugal rights in favour of the
petitioner. The trial Court has observed in this regard that
ground for wife’s refusal to live with her husband is a question
of fact which can be considered only at the trial.
7. In aforesaid backdrop, when we examine the financial
status of the respondent-wife, we find that she has done M.Sc.
in Applied Mathematics. A copy of letter dated 09.04.2013
5 Cr. R. No.632/2017
issued by Registrar of Barkatullah University, Bhopal reveals
that respondent-wife Harsha was selected to do her Ph.D.
course 2012 under the guidance of Dr. Deepak Singh and Dr.
Nawal Singh. Her name figures in the seniority list published
by Chhattisgarh Swami Vivekanand Technical University on
08.04.2016, wherein her name appears at serial no.72. In that
list, she is shown as holding the post of Assistant Professor in
Applied Mathematics as on 01.01.2016. In this regard, the
respondent-wife has filed an affidavit stating that the seniority
list is not updated and her name figures in the seniority list of
two other Educational Institutions as well. In any case, the
petitioner himself has filed certificate dated 15.06.2011 issued
by Group Director of Swami Vivekanand College of
Engineering which declares that respondent-wife has been
relieved from her post on 16.05.2011 at her own request. This
certificate also reveals that respondent-wife worked in
aforesaid Institution since 15.09.2006. Letter dated 06.08.2012
issued by Director of Rungta College of Engineering and
Technology, Bhilai reveals that respondent was appointed as
Senior Lecturer in the department of Mathematics on
06.08.2012 on a salary of Rs. 23,278/- plus 15% Dearness
Allowance. In these circumstances, it is clear that whether or
not the respondent-wife is employed at present, the fact
remains that she is highly qualified and is capable of earning
but there is no document on record which would indicate that
she is employed at present and is actually earning.
8. TDS Form 26AS dated 11.02.2017 reveals that in the
financial year 2015-2016 income tax was deducted at source
from her income. Letter dated 19.03.2013 reveals that she
owns a flat at Indore and has taken a home loan thereon. The
6 Cr. R. No.632/2017
balance outstanding on 19.03.2013 was Rs.2,41,180/-. The
property tax demand note issued by Indore Municipal
Corporation, Indore reveals that aforesaid flat ad-measures
795 sq.ft. and she had paid Rs.1669.50 as property tax thereon.
She also has two bank accounts in ICICI Bank and Bank of
Baroda.
9. The trial Court has placed reliance upon the judgment
rendered by the Supreme Court in the cases of Chaturbhuj vs.
Sitabai, AIR 2008 SC 30, Meenakshi Gur vs. Chitranjan,
AIR 2009 SC 1377, Ramlal vs. Anita, 2004 Cr.L.J. 3669 and
Revtibai vs. Jageshwar, 1991 Cr.L.J. 40 M.P. to hold that if
wife is earning something to sustain herself that does not mean
that she is not entitled to maintenance. She is entitled to the
same standard of living to which she was accustomed when
she lived with her husband. The income of her father cannot be
taken into consideration.
10. Reverting back to the case at hand, it may be noted that
the trial Court has held that at present, the yearly income of
petitioner/husband is Rs.3,61,183/-. It is true that wife’s
capacity to earn should not be confused with actual earning.
However, the fact remains that the respondent-wife is a highly
qualified lady without any physical disability. She was earning
since before her marriage to the petitioner-husband. Even after
the marriage, she continued to work. She is qualified enough
to get employment as Assistant Professor in an Engineering
College. She also has a flat to live in. In these circumstances,
it would not be in the interest of justice to put full burden for
her maintenance on the husband. If the wife was working
before the marriage and even after marriage, she cannot be
allowed to sit idle and enjoy the fruits of a failed marriage
7 Cr. R. No.632/2017
without herself doing something to maintain her standard of
living.
11. In these circumstances, though the wife would be
entitled to interim maintenance but the rate has to be placed at
a level which is sufficient to maintain herself without luxuries
of life. Therefore, taking a holistic view of the matter and
keeping in mind the facts and circumstances of the case in
their entirety, the amount of interim maintenance fixed by the
trial Court may be reduced from Rs.7500/- per month to
Rs.4000/- per month.
12. Consequently, this criminal revision is partly allowed.
The rate of interim maintenance is reduced from Rs.7500/- per
month to Rs.4000/- (Rupees: four thousand) per month from
the date of this order.
13. This criminal revision accordingly stands disposed of.
b
Digitally signed by BIJU BABY
(C.V. Sirpurkar)
Date: 2018.04.10 03:49:36 -07’00’ Judge
8 Cr. R. No.632/2017
IN THE HIGH COURT OF MADHYA PRADESH :
INDORE BENCH
Criminal Revision No.632/2017
Ashish Hardas
vs.
Harsha Hardas
ORDER
Post for : 09/04/2018
(C.V. Sirpurkar)
Judge
