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Arif Khan vs Ruby Khan on 2 March, 2020

THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon’ble Shri Justice Vishnu Pratap Singh Chauhan
Cr.R. No. 4737 / 2019

Arif Khan
vs.
Ruby Khan and Another
———————————————————————-
Shri Lal Hitendra Singh and Manish Nigam, learned
counsel for the applicant.
Shri Mukhtar Ahamad, learned counsel for the
respondents.
———————————————————————-
ORDER

( 02.03.2020)

Applicant had filed this Criminal Revision under Section

397/401 of CrPC being aggrieved by the order dated 05.04.2019

passed by the Principal Judge, Family Court, Katni in MJC

No.89/2018, whereby the learned court directed the applicant to

pay Rs.5,000/- p.m. to respondent No.1 (wife) and Rs.3,000/-

p.m. to respondent No.2 (daughter) as maintenance.

2. Facts giving rise to this petition, in short, are that, both

respondents filed an application under section 125 of CrPC

against applicant for maintenance, alleging therein that

respondent No.1 got married with the applicant by Muslim

Custom, and respondent No.2 is born out of that wedlock. After

marriage, applicant and his family members started demanding
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Cr.R. No.4737/2019

extra money from parents of respodent No.1, for purchasing JCB.

At the time of marriage, parents of respondent No.1 provided two

lacs rupees cash, ornaments and one motorcycle to the applicant,

but inspite of that applicant himself and his parents started

demanding dowry and passed vulgar comments and sometimes

they also beat respondent No.1. After giving birth to respondent

No.2, harassment by applicant and other family members were

increased, as she had given birth to a girl child, whereas they

want a boy child. They took ornaments and other articles

provided by her parents and expelled her from house and

threatened her for divorce. Then she reported this matter to the

Superintendent of Police Katni and also lodged a report in Mahila

Thana, Katni and started living along with her daughter in her

parental house. She is not having any means of income and when

applicant denied for giving any maintenance then she filed the

application before the Family Court, Katni. Applicant denied all

the facts, as alleged in the application by respondent No.1.

Learned Family Court, after recording the evidence of both side

passed the impugned order dated 05.04.2019, partly allowed the

application and directed the applicant to pay maintenance as

aforesaid. Being aggrieved by that order of maintenance,

applicant filed this criminal revision on the ground that the
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Cr.R. No.4737/2019

applicant is earning only Rs.8,000/- per month and the amount

awarded by the learned court is on higher side.

3. Learned counsel for the applicant submits that, Respondent

No.1 have also filed an application under Section 12 of the

Protection of Women From Domestic Violence Act, 2005

(hereinafter referred to as ‘DV Act’) and in that case also she is

getting Rs.2,500/- per month as interim maintenance. Learned

Family Court not adjusted that amount in the maintenance

allowance. Learned counsel further submits that, as applicant is

only earning Rs.8,000/- per month and learned Family Court

awarded total Rs,8,000/- as maintenance, that is not sustainable.

4. Learned counsel for the applicant placed reliance on orders

passed by the Coordinate Benches of this Court in the cases of

Mohit Jain vs. Sonali Jain in Criminal Revision No.917/2017

dated 10th April, 2018, Sunil Lodhi vs Smt. Vimlesh Lodhi in

Criminal Revision No. 110/2015 dated 13.02.2017, and Gaurav

Dhabhai vs. smt. Aasha Dhabhai, in Criminal Revision

No.3720/2018 dated 15.10.2019 and prays to set aside the

impugned order.

5. Learned counsel appearing for the respondents submits that

applicant is earning more than Rs.8,000/- per month. He is a

Contractor, he is having JCB Machine and maintaining four
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Cr.R. No.4737/2019

wheeler car, his earning is more than Rs.50,000/- per month and

submits that learned trial court have not erred in awarding

maintenance allowance and prays to dismiss this revision.

6. Having heard both the counsel perused the record of MJC

No.89/2018. Both parties adduced the evidence. Respondent

No.1 recorded her statement as witness No.1, she categorically

stated that applicant is having Tractor, Dumper, JCB Machine

and other vehicles and run those vehicles on rent. Apart from

this, the applicant is working as a Contractor and earns

approximately Rs.2 lacs. She also submit some photographs of

the applicant along with the vehicles. This witness had been

examined at length and in para 6 thereof she again reiterated the

fact that, applicant is having his own truck and JCB Machine and

is working as a Contractor.

7. Applicant also examined himself as a witness and

categorically stated that he borrowed Rs.18 to 20 Lacs for

treatment of his father and presently he earned Rs.7,000/- to

Rs.8,000/- per month only, his younger brother is working

separately and his mother is dependent on him. This witness in

para 6 admitted that he is working as a Supervisor in Lime Stone

Crusher and in para 7 he admitted that since last one year he is

not bearing any expenses of both respondents, but previously he
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Cr.R. No.4737/2019

sent Rs.500/- to Rs.1,000/- to both respondents. This witness

nowhere submitted the salary slip / salary certificate / income

certificate or any documents pertaining to his income.

8. After perusal of the statements of both the parties, it is

reflected that, after marriage a tensed atmosphere developed

between the husband and wife. Respondent No.1 delivered a girl

child at her parental house and applicant did not take care of his

child and a criminal case lodged against the applicant at the

instance of respondent No1. There is sufficient material available

on record to show that respondent No.1 is living separately,

having sufficient cause.

9. So far as amount of maintenance is concerned, learned

Family Court directed the appellant to pay Rs.5,000/- to

respondent No.1 (wife) and Rs.3,000/- to respondent No.2

(daughter). The amount awarded as maintenance for respondent

No.2 is concerned, considering the school fees and other

expenses such as books, stationary etc. this court finds that the

amount awarded is not excessive for respondent No.2.

10. Now, the maintenance amount awarded to respondent No.1

is concerned, as submitted by the counsel for the applicant, the

applicant is earning only Rs.6,000/- to Rs.7,000/- per month and

apart of maintenance amount awarded by the learned Family
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Cr.R. No.4737/2019

Court under Section 125 CrPC, respondent No.1 is also getting a

sum of Rs.2,500/- per month as interim maintenance under

Section 20 of the DV Act.

11. In the case of Mohit Jain (supra) relied upon by the

applicant, a Coordinate Bench of this Court adjusted the amount

of interim maintenance awarded under Section 24 of the Hindu

Marriage Act with the amount awarded under Section 125 of

CrPC.

12. In the case of Sunil Lodhi (supra) a Coordinate Bench of

this Court following the preposition laid down by the Hon’ble

Apex Court in the case of Chaturbhuj vs. Sitabai (2008) 2 SCC

316 has held that, if wife is living separately with her own will,

without any sufficient cause, she is not entitled for grant of

maintenance. But in the present case, there are so many criminal

cases pending against each other and from the statement of

respondent No.1, it is reflected that she was harassed by the

applicant and his family members and there are sufficient cause

for living separately which is reflected from the evidence of

respondent No.1.

13. In the case of Gaurav Dhabhai (supra) this court held that

non-applicant (wife) has failed to prove the income of applicant,
7

Cr.R. No.4737/2019

in these circumstances, Coordinate Bench reduced the

maintenance amount from Rs.7,000/- to Rs.3,000/- per month.

14. In the present case, respondent No.1, clearly stated that

applicant is having a JCB Machine, Dumper and four wheeler

and is earning approximately Rs.2 Lacs Rupees. The applicant in

his statement, in para 4, deposed that his younger brother deals

with the business of crusher project and in his cross-examination

admitted that, he is working as Supervisor in Lime Stone Crusher

and stated that his earning is Rs.7,000/- to Rs.8,000/- per month,

but not submitted any proof related to his salary to substantiate

that statement. Once respondent No.1 stated that applicant is

having a sufficient means of earning, he is having a JCB

Machine, Dumper and four wheeler, it is not possible for the

respondent to submit exact income of her husband while living in

matrimonial house, she can gather facts on which her husband

earns money. Now, burden is shifted to the husband to rebut that

fact and produced sufficient rebuttal evidence.

15. Hon’ble Apex Court in the case of Shamima Farooqui vs.

Shahid Khan, reported in (2015) 5 SCC 705, categorically held

that, if husband is an able bodied young man, is not suffering

from any deformities and is capable of earning money, then, he is

under obligation to maintain his wife. Hon’ble Apex Court
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Cr.R. No.4737/2019

calculated an estimated income and awarded maintenance

allowance. Para 18 and 19 of the judgment reads as under :

18. In this context, we may profitably quote a passage
from the judgment rendered by the High Court of Delhi in
Chander Prakash Bodhraj v. Shila Rani Chander Prakash
wherein it has been opined thus:-

7. …..an able-bodied young man has to be presumed
to be capable of earning sufficient money so as to be
able reasonably to maintain his wife and child and he
cannot be heard to say that he is not in a position to
earn enough to be able to maintain them according to
the family standard. It is for such able-bodies person
to show to the Court cogent grounds for holding that
he is unable, for reasons beyond his control, to earn
enough to discharge his legal obligation of
maintaining his wife and child. When the husband
does not disclose to the Court the exact amount of his
income, the presumption will be easily permissible
against him.”

19. From the aforesaid enunciation of law it is limpid that
the obligation of the husband is on a higher pedestal when
the question of maintenance of wife and children arises.
When the woman leaves the matrimonial home, the
situation is quite different. She is deprived of many a
comfort. Sometimes the faith in life reduces. Sometimes,
she feels she has lost the tenderest friend. There may be a
feeling that her fearless courage has brought her the
misfortune. At this stage, the only comfort that the law can
impose is that the husband is bound to give monetary
comfort. That is the only soothing legal balm, for she
cannot be allowed to resign to destiny. Therefore, the
lawful imposition for grant of maintenance allowance.

16. Considering all these facts, this court is of the firm view

that the learned Principal Judge did not commit any error in

awarding Rs.5,000/- maintenance while considering the present

living index and current price index.

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17. Learned trial court considered this aspect that respondent

No.1 is getting Rs.2,500/- per month as interim maintenance

under Section 20 of the DV Act and while considering that

allowance awarded Rs.5,000/- as maintenance allowance under

Section 125 of CrPC to respondent No.1 and not adjusted the

amount of Rs.2,500/-, awarded as interim maintenance by the

trial court.

18. So far as set-off of the amount of Rs.2,500/- is concerned,

perused Section 20 of the D.V. Act, which reads as under :

20. Monetary reliefs.–(1) While disposing of an
application under sub-section (1) of section 12, the
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered by
the aggrieved person and any child of the aggrieved person
as a result of the domestic violence and such relief may
include but is not limited to–

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or
removal of any property from the control of the
aggrieved person; and

(d) the maintenance for the aggrieved person as well
as her children, if any, including an order under or in
addition to an order of maintenance under section
125 of the Code of Criminal Procedure, 1973 (2 of
1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be
adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is
accustomed.

10

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(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case
may require.

(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the parties to
the application and to the in-charge of the police station
within the local limits of whose jurisdiction the respondent
resides.

(5) The respondent shall pay the monetary relief granted to
the aggrieved person within the period specified in the
order under sub-section (1).

(6) Upon the failure on the part of the respondent to make
payment in terms of the order under sub-section (1), the
Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to
deposit with the court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent,
which amount may be adjusted towards the monetary relief
payable by the respondent.

19. After perusal of Section 20(1)(d), this court is of the view

that the order passed under Section 20 of the DV Act, whether it

is temporary or permanent, It is under or in addition to the order

of maintenance under Section 125 CrPC.

20. So far as interim maintenance awarded under Section 20 of

DV Act is concerned, this court is of the view that the

maintenance allowance awarded under Section 125 of CrPC by

the Family Court and interim maintenance under Section 20 of

the DV Act awarded by the Trial Court are of the same nature. It

is not a separate amount, it is under or in addition to each other.
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Cr.R. No.4737/2019

Interim maintenance Rs.2,500/- is fixed by the trial court in a

case pending between the applicant and respondent No.1 under

DV Act. This court is of the view that amount awarded by the

trial court under any provisions of the DV Act, until and unless

not specifically mentioned in the order, it should be adjusted with

the order for awarding maintenance under section 125 of CrPC.

21. In this way, the amount of Rs.2,500/- awarded as interim

maintenance under DV Act could be adjusted in the amount of

maintenance awarded under Section 125 of CrPC. Hence, this

court incline to modify the operative order by adding that, if

respondent No.1 received an amount of Rs.2,500/- as interim

maintenance or as a maintenance under DV Act, that amount be

adjusted in the awarded amount of Rs.5,000/- in favour of

respondent No.1.

22. With the aforesaid modification, this revision is partly

allowed and disposed of.

23. Interlocutory applications, if any, pending in this case,

stands dismissed.

No order as to costs.

(Vishnu Pratap Singh Chauhan)
Judge
ss

Digitally signed by SWETA SAHU
Date: 2020.03.03 11:09:54
+05’30’

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