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Amar Singh vs Smt. Vimla on 22 June, 2021

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THE HIGH COURT OF MADHYA PRADESH
CRR No.2376/2020
(AMAR SINGH VS. SMT. VIMLA)
Through Video Conferencing

Gwalior, Dated : 22/06/2021

Shri Brijesh Kumar Tyagi, learned counsel for the applicant.

None for the respondent though served.

This criminal revision under Section 397/401 of Cr.P.C. r/w

Section 19(4) of Family Court Act has been filed against the order

dated 10/10/2020 passed by Principal Judge, Family Court Guna in

case MJC No.72/2018, 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 Rs.7,000/- per month from the date

of the order.

The necessary facts for disposal of present revision in short are

that, the respondent filed an application under Section 125 of Cr.P.C.

on the ground that she got married to the applicant on 25/05/2013 in

accordance of Hindu Rites and Rituals. Since, the applicant and her

in-laws were not satisfied with the dowry, therefore, they used to beat

her, harass her for demand of a four wheeler and cash amount. About

seven months prior to filing of the application i.e. in the month of

September, 2017, the respondent was ousted from her matrimonial

house and thereafter, she is residing in her parental home. In the

meanwhile, neither the applicant came to take her back nor made any

efforts to lookafter her. The respondent is on the verge of starvation.
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Her father is poor and is not in position to bear her expenses and

accordingly, it was prayed that for meeting out necessary expenses,

the applicant be directed to pay Rs.15,000/- per month by way of

maintenance amount. It was further pleaded that the applicant

belongs to a rich family and is having 50 bigha of agriculture land

with two tube wells. The applicant has cattles, tractor and other

agriculture equipments. He has a house and accordingly, the yearly

income of the applicant is Rs.50,00,000/-.

The applicant filed his reply to the application filed under

Section 125 of Cr.P.C. He admitted that he got married to the

respondent on 25/05/2013. It was claimed that since, both the parties

are poor and since they were not in a position to bear the expenses of

marriage and therefore, the marriage was performed in Sammelan.

The marriage was performed without any dowry. The allegation of

harassment due to non fulfillment of demand of four wheeler and

cash amount was denied. It was also denied that the respondent was

ousted from her matrimonial house about seven months prior to the

filing of application. It was pleaded that for the first time the

respondent had resided in her matrimonial house for a period of four

days and during this period her behavior towards her in-laws was

cruel. It was further pleaded that the respondent never allowed the

applicant to consummate the marriage and she was continuously

challenging the potency of the applicant in the society. The

respondent is an expert in stitching and is also running beauty parlor
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and earning rupees thirty to forty thousand per month. She is

maintaining her parents out of her own income that is why the

parents of the respondent are not permitting her to come to her

matrimonial home. It was further pleaded that in fact the parents of

the respondent are insisting that the applicant should reside in the

parental home of the respondent as Gharjamai. When the applicant

refused to do so, then a false criminal case under Section 498-A of

IPC was instituted against the applicant and his family members.

Later on the applicant and his family members were acquitted. It was

further denied that the applicant is having any agriculture land,

house, two tube wells, tractor and agricultural equipments. He also

denied that he had any cattles, it was also denied that yearly income

of the applicant is Rs.50,00,000/-. It was further pleaded that the

applicant is a student and is working on a part time basis in a shop

from where he is getting Rs.2,000/- per month and apart from that,

the applicant has no source of income. It was further pleaded that

after the marriage, when the applicant went to the parental home of

the respondent to take her back, then for half an hour, the respondent

and her family members did not open the door and thereafter, they

insisted that the respondent should be permitted to reside in her

parental home for next 8 to 10 days. Accordingly, the applicant came

back from the door of the parental home of the respondent.

Thereafter, the applicant again went to the parental home of the

respondent to take her back. However, although the respondent was
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permitted to come back to her matrimonial home but the applicant

was disrespected. Whenever the applicant informed the parents of the

respondent about her cruel behavior then every time they replied that

if the applicant wants to leave the respondent then he can do so but

he has to pay an amount of Rs.15 to 20 Lacs. In reply several

allegations were made against the respondent and her parents about

cruel behavior.

The respondent in support of her case examined herself. In

cross-examination, she admitted that the applicant was acquitted for

offence under Section 498-A of IPC. However, she denied that the

marriage was performed without any dowry. She further admitted the

suggestion given by the applicant that the applicant and his mother

did not like the food prepared by the respondent. It was further

denied that she did not allow the applicant to consummate marriage.

She further denied that the applicant was detained in her parental

home. She further denied that the applicant is a land less laborer. She

further accepted that the marriage has not been consummated so far.

She Further denied that she is doing the work of stitching or beauty

parlor. She further denied that she is running a beauty parlor in the

name of Sunena beauty parlor and Sunena Ladies Tailor. She further

denied that she is earning Rupees 30 to 40 thousand per month. She

further denied that the applicant is doing a part time job in a shop on

monthly income of Rs.2,000/-

The respondent examined her father Kedari as P.W.2.
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The applicant examined himself in his defence and apart from

alleging the allegations of cruelty by the respondent and her parents,

it was claimed by the respondent that he does not have any property

or land or agriculture equipments. He also denied that the respondent

was ever harassed for demand of four wheeler and an amount of ten

lacs. He further claimed that the marriage has not been consummated

however, he denied that because of non consummation of marriage,

he had started beating the respondent.

The Court below after considering the totality of the facts and

circumstances of the case, came to a conclusion that it cannot be said

that the respondent is residing separately without any reasonable

reason. It was further held that the applicant is an able bodied person

and certain allegations have been made by the applicant, which have

not been proved by him. It was also found that the respondent is not

doing any work and she is unable to maintain herself.

So far as the question of quantum of maintenance amount is

concerned, it was held that according to the respondent, the applicant

is having 12 bigha of land whereas his father is having 38 bighas of

land. He is the only son of his parents. Kedari P.W.2 has also claimed

that the applicant is having forty to fifty bigha of land.

On the contrary, it was the claim of the applicant that he is a

student and is working as a part time job in a shop from where he is

earning Rs.2,000/- per month.

The Court below after considering the evidence came to a
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conclusion that although, the respondent has failed to prove that the

applicant is having any agriculture land but from the pleadings as

well as evidence of the parties, it appears that the applicant belongs

to a financially sound family and accordingly, he is in a position of

maintaining the respondent. Accordingly, an amount of Rs.7,000/-

has been awarded by way of monthly maintenance.

Challenging the order passed by the Court below, it is

submitted by the counsel for the applicant since the applicant was

acquitted for offence under Section 498-A of IPC, therefore, the

Court below has committed material illegality by holding that the

respondent is residing separately because of reasonable reason. It is

further submitted that the respondent has failed to prove the monthly

income of the applicant, therefore, the maintenance amount of

Rs.7,000/- per month is on higher side.

None for the respondent though served.

Heard the learned counsel for the petitioner.

It is true that the applicant has been acquitted for offence under

Section 498-A of IPC. However, it is equally true that the applicant

had leveled serious allegations against the respondent and her

parents. However, the applicant did not file even a single document

to show that he had ever lodged any report regarding the illegal

confinement or mal-treatment by the respondent her parents.

Leveling serious allegations and failing to prove the same, may also

amount to cruelty. Undisputedly the marriage between parties could
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not be consummated. On one hand the applicant has claimed that the

respondent is defaming him in the society by alleging that he is

impotent but he did not bring any evidence on record to show that he

is not impotent. Further, the applicant had leveled a false allegation

that the respondent is running a beauty parlor as well as a stitching

center. He did not even file the photographs of the shops.

Under these circumstances, this Court of the considered

opinion that after having leveled serious allegations against her and

her parents and having failed to prove the same, it cannot be said that

the respondent is residing separately without any reasonable reason.

Furthermore, it is not the case of the applicant that he had ever tried

to take the respondent back from her parental home. Thus, it is also

clear that the applicant has deserted the respondent and he cannot

take advantage of his own wrong. Further, compelling a married

women to live in her parental home, is also a cruelty. Accordingly, it

is held that it cannot be said that the respondent is residing separately

without any reasonable reason.

So far as the question of quantum of maintenance amount is

concerned, the Supreme Court in the case of Shamima Farooqui v.

Shahid Khan reported in (2015) 5 SCC 705 has held as under:-

“14. Coming to the reduction of quantum by the
High Court, it is noticed that the High Court has
shown immense sympathy to the husband by reducing
the amount after his retirement. It has come on record
that the husband was getting a monthly salary of Rs
17,654. The High Court, without indicating any
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reason, has reduced the monthly maintenance
allowance to Rs 2000. In today’s world, it is extremely
difficult to conceive that a woman of her status would
be in a position to manage within Rs 2000 per month.

It can never be forgotten that the inherent and
fundamental principle behind
Section 125 CrPC is for
amelioration of the financial state of affairs as well as
mental agony and anguish that a woman suffers when
she is compelled to leave her matrimonial home. The
statute commands that there have to be some
acceptable arrangements so that she can sustain
herself. The principle of sustenance gets more
heightened when the children are with her. Be it
clarified that sustenance does not mean and can never
allow to mean a mere survival. A woman, who is
constrained to leave the marital home, should not be
allowed to feel that she has fallen from grace and
move hither and thither arranging for sustenance. As
per law, she is entitled to lead a life in the similar
manner as she would have lived in the house of her
husband. And that is where the status and strata of the
husband comes into play and that is where the legal
obligation of the husband becomes a prominent one.
As long as the wife is held entitled to grant of
maintenance within the parameters of
Section 125
CrPC, it has to be adequate so that she can live with
dignity as she would have lived in her matrimonial
home. She cannot be compelled to become a destitute
or a beggar. There can be no shadow of doubt that an
order under
Section 125 CrPC can be passed if a
person despite having sufficient means neglects or
refuses to maintain the wife. Sometimes, a plea is
advanced by the husband that he does not have the
means to pay, for he does not have a job or his
business is not doing well. These are only bald
excuses and, in fact, they have no acceptability in law.
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.”

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Thus, if the husband is healthy and is an able bodied person,

then he is under legal obligation to support his wife. It is the claim of

the applicant that he is working on a part time basis in a shop and is

earning Rs.2,000/- per month. The applicant has not examined owner

of the shop in support of his claim. The applicant has also not

examined his father to establish that the applicant does not belongs to

a financially sound family. The applicant has not filed any document

to show that he is a student. Under these circumstances, this Court is

of the considered opinion that since the applicant is a healthy and

able bodied person therefore, he cannot run away from his legal

obligation to support the respondent.

So far as the question of quantum of maintenance is concerned,

the Supreme Court in the case of Jasbir Kaur Sehgal v. Distt.

Judge, Dehradun reported in (1997) 7 SCC 7 has held as under:-

“8. The wife has no fixed abode of residence.
She says she is living in a Gurdwara with her eldest
daughter for safety. On the other hand the husband has
sufficient income and a house to himself. The wife has
not claimed any litigation expenses in this appeal. She
is aggrieved only because of the paltry amount of
maintenance fixed by the courts. No set formula can
be laid for fixing the amount of maintenance. It has, in
the very nature of things, to depend on the facts and
circumstances of each case. Some scope for leverage
can, however, be always there. The court has to
consider the status of the parties, their respective
needs, the capacity of the husband to pay having
regard to his reasonable expenses for his own
maintenance and of those he is obliged under the law
and statutory but involuntary payments or deductions.
The amount of maintenance fixed for the wife should
be such as she can live in reasonable comfort
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considering her status and the mode of life she was
used to when she lived with her husband and also that
she does not feel handicapped in the prosecution of
her case. At the same time, the amount so fixed cannot
be excessive or extortionate. In the circumstances of
the present case we fix maintenance pendente lite at
the rate of Rs 5000 per month payable by the
respondent-husband to the appellant-wife.”

The Supreme Court in the case of Chaturbhuj v. Sita Bai

reported in (2008) 2 SCC 316 has held as under:-

“6. The object of the maintenance proceedings
is not to punish a person for his past neglect, but to
prevent vagrancy by compelling those who can
provide support to those who are unable to support
themselves and who have a moral claim to support.
The phrase “unable to maintain herself” in the instant
case would mean that means available to the deserted
wife while she was living with her husband and would
not take within itself the efforts made by the wife after
desertion to survive somehow.
Section 125 CrPC is a
measure of social justice and is specially enacted to
protect women and children and as noted by this
Court in
Captain Ramesh Chander Kaushal v. Veena
Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508 :
AIR 1978 SC 1807] falls within constitutional sweep
of
Article 15(3) reinforced by Article 39 of the
Constitution of India. It is meant to achieve a social
purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply
of food, clothing and shelter to the deserted wife. It
gives effect to fundamental rights and natural duties
of a man to maintain his wife, children and parents
when they are unable to maintain themselves. The
aforesaid position was highlighted in
Savitaben
Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC
636 : 2005 SCC (Cri) 787 : (2005) 2 Supreme 503].”

Thus, it is clear that the applicant has made every effort to

suppress his income as well as the financial condition of his family. It

is well established principle of law that a wife is entitled to enjoy the
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same status, which she would have enjoyed in her matrimonial house.

The Wife cannot be compelled to leave the life of restitude.

The Supreme Court in the case of Reema Salkan v. Sumer

Singh Salkan reported in (2019) 12 SCC 303 has held as under:-

“16. The principle invoked by the High Court
for determination of monthly maintenance amount
payable to the appellant on the basis of notional
minimum income of the respondent as per the current
minimum wages in Delhi, in our opinion, is untenable.
We are of the considered opinion that regard must be
had to the living standard of the respondent and his
family, his past conduct in successfully protracting the
disposal of the maintenance petition filed in the year
2003, until 2015; coupled with the fact that a specious
and unsubstantiated plea has been taken by him that
he is unemployed from 2010, despite the fact that he
is highly qualified and an able-bodied person; his
monthly income while working in Canada in the year
2010 was over Rs 1,77,364; and that this Court in
Reema Salkan v. Sumer Singh Salkan [Reema Salkan
v. Sumer Singh Salkan, (2019) 12 SCC 312] has prima
facie found that the cause of justice would be
subserved if the appellant is granted an interim
maintenance of Rs 20,000 per month commencing
from 1-11-2014. At this distance of time, keeping in
mind the spiraling inflation rate and high cost of
living index today, to do complete justice between the
parties, we are inclined to direct that the respondent
shall pay a sum of Rs 20,000 per month to the
appellant towards the maintenance amount with effect
from January 2010 and at the rate of Rs 25,000 per
month with effect from 1-6-2018 until further orders.
We order accordingly.”

The Supreme Court in the case of Bhuwan Mohan Singh v.

Meena reported in (2015) 6 SCC 353 has held as under:-

“2. Be it ingeminated that Section 125 of the
Code of Criminal Procedure (for short “the Code”)
was conceived to ameliorate the agony, anguish,
financial suffering of a woman who left her
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matrimonial home for the reasons provided in the
provision so that some suitable arrangements can be
made by the court and she can sustain herself and also
her children if they are with her. The concept of
sustenance does not necessarily mean to lead the life
of an animal, feel like an unperson to be thrown away
from grace and roam for her basic maintenance
somewhere else. She is entitled in law to lead a life in
the similar manner as she would have lived in the
house of her husband. That is where the status and
strata come into play, and that is where the obligations
of the husband, in case of a wife, become a prominent
one. In a proceeding of this nature, the husband
cannot take subterfuges to deprive her of the benefit
of living with dignity. Regard being had to the solemn
pledge at the time of marriage and also in consonance
with the statutory law that governs the field, it is the
obligation of the husband to see that the wife does not
become a destitute, a beggar. A situation is not to be
maladroitly created whereunder she is compelled to
resign to her fate and think of life “dust unto dust”. It
is totally impermissible. In fact, it is the sacrosanct
duty to render the financial support even if the
husband is required to earn money with physical
labour, if he is able-bodied. There is no escape route
unless there is an order from the court that the wife is
not entitled to get maintenance from the husband on
any legally permissible grounds.”

Considering the totality facts and circumstances of the case as

well as price index and the cost of the goods of daily need, this Court

is of the considered opinion that by no stretch of imagination, it can

be said that the amount of Rs.7,000/- awarded by Court below is on a

higher side.

It is next contended by the counsel for the applicant that the

Trial Court should not have awarded maintenance from the date of

application.

The Supreme Court in the case of Rajnesh v. Neha reported in
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(2021) 2 SCC 324 has laid down guide lines for determining the

quantum of maintenance and has held as under:-

“113. It has therefore become necessary to issue
directions to bring about uniformity and consistency in
the orders passed by all courts, by directing that
maintenance be awarded from the date on which the
application was made before the court concerned. The
right to claim maintenance must date back to the date
of filing the application, since the period during which
the maintenance proceedings remained pending is not
within the control of the applicant.”

Accordingly, this Court is of the considered opinion that Court

below did not commit any mistake by awarding the maintenance from

the date of the application.

Consequently, the order dated 10/10/2020 passed by Principal

Judge, Family Court Guna in case MJC No.72/2018 is hereby

affirmed.

It appears that by order dated 06/02/2019, Court had below

awarded an amount of Rs.3,000/- by way of interim maintenance.

Accordingly, it is directed that the amount paid by the applicant by

way of interim maintenance is liable to be adjust in the arrears of

maintenance amount.

With aforesaid observation, this petition is hereby dismissed.

(G.S. Ahluwalia)
Pj’S/- Judge
PRINCEE
BARAIYA
2021.06.26
11:42:46 -07’00’

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