THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon’ble Shri Justice Rajendra Kumar Srivastava
Cr.R No. 1804/2015
Ashish Khare
Vs
Smt. Archana @ Sonu Khare
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Shri Sharad Gupta, learned counsel for the applicant.
Shri Jitesh Shrivastava, learned counsel for the
respondent.
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ORDER
(20.08.2018)
Per Rajendra Kumar Srivastava, J.
This revision has been preferred against the
order dated 18.05.2015 passed by Principal Judge, Family
Court, Satna in M.J.C. No. 103/2014 whereby learned
Principal Judge, Family Court ordered that petitioner/non-
applicant pay 10,000/- Rs. as maintenance per month to the
respondent/applicant.
2. The case of respondent/applicant before the
Family Court was that she is wife of petitioner/non-applicant.
petitioner/non-applicant misbehaved and tortured her.
Respondent/ Applicant was seriously sick but petitioner/ non-
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applicant had not paid any attention. So in these
circumstances, respondent/applicant became bound to live her
parental home. Respondent/Applicant has no means and
petitioner/non-applicant has been earning Rs. 30,000/- per
month from his business or service. Petitioner/Non-applicant
deserted her so she is entitled to get maintenance in the tune of
Rs. 15,000/- per month.
3. Petitioner/Non-applicant denied all the allegations
and submitted that the marriage between the applicant and
respondent was performed on 04.12.1998 and after marriage,
the respondent/applicant resided with the applicant at Jaipur
along with his family. The respondent/applicant resided with
the petitioner/non-applicant up to October, 2005 and
thereafter, she came to her parent’s house at Satna and she did
not come back even after repeated efforts being made by the
petitioner/non-applicant. Thereafter, the petitioner/non-
applicant had filed a divorce petition before the Family Court
at Jaipur, vide case no. 602/2008. Divorce Petition was
decreed and the marriage between the petitioner/non-applicant
and respondent was dissolved on 07.03.2009. After
dissolution of marriage, the petitioner/non-applicant
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performed the another marriage and child was born out of
such wedlock.
4. Both the parties have examined the witnesses in
support of their respective case. The learned trial judge passed
the impugned order considering all the evidence.
5. According to the petitioner/non-applicant, the
learned trial Court completely lost sight from the fact that
marriage between the parties have already dissolved by
judgment and decree dated 07.03.2009 and the same has
become final as it has not been challenged by the
respondent/applicant before any Court of law. Apart from the
same for more than 7 years she did not file any application for
maintenance which shows that she is having sufficient means
to maintain her and the question of neglect and refusal on the
part of the applicant does not arise which is necessary for
grant any kind of maintenance against the husband.
Petitioner/non-applicant is dependent on the pension of his
father and he has performed the second marriage and
maintaining his wife and child and he is doing the private job
and he is hardly able to maintain his family. In these
circumstances, awarding of Rs. 10,000/- maintenance is given
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without any basis by the trial Court even without ascertaining
the actual income and without filing any proof of income by
the respondent/applicant. Respondent/applicant has admitted
in her evidence that she is a Dietitian, this fact shows that the
capacity of earning of the respondent/applicant. The trial
Court judge had awarded the interim maintenance at the tune
of Rs. 5,000/- per month but the same has been doubled in the
final order, thus the impugned order suffers from material
irregularity and is liable to be set aside in the interest of
justice. So the impugned order dated 18.05.2015 passed by
Principal Judge, Family Court, Satna may be set aside.
6. I perused the record of trial Court, it is admitted
that the marriage between the petitioner/non-applicant and
respondent/applicant was performed on 04.12.1998. It is
admitted that the respondent/applicant is living separately
from her husband since 13.07.2005. It is also admitted that
petitioner/non-applicant has filed a petition under Section 13
Hindu Marriage Act before the Family Court Jaipur, this
petition was allowed on 07.03.2009 Family Court Jaipur and
granted the divorce and that judgment and decree was not
challenged by the respondent/applicant. So it is proved that
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respondent/applicant is divorcee wife. It is evident that
respondent/applicant did not marry to other person. Proviso to
125 of the Cr.P.C. clarify that wife includes woman who has
been divorced by, or has obtained divorce from, her husband
and has not remarried so it is clear, that respondent/ applicant
is entitled to get maintenance on this ground that she is
divorcee wife of petitioner/non-applicant and she did not
remarry.
7. Petitioner/non-applicant argued that he is not
owing any liabilities to maintain the respondent/applicant.
After dissolution of marriage it is not legal. It is evident from
the record that respondent/applicant is residing separately
from her husband since 13.07.2005. It is also evident from the
record that petitioner/non-applicant has not made serious
effort to take her wife to bring her matrimonial home. So it is
clear, that petitioner/non-applicant neglected her wife.
Respondent/ applicant is seriously sick and she is a patient of
paralysis. Dr. Sangita Jain (DW-4) deposed in the trial Court
in this regard, so it is clear, respondent/applicant is not able to
earn. It is true that respondent/applicant did not produce any
reliable evidence about income of petitioner/non-applicant,
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but petitioner/non-applicant has remarried. He also admitted
he has a son. So it is clear, petitioner/non-applicant has
sufficient means to maintain his family. It is argued by the
petitioner that he has no source of pay Rs. 10,000/-
maintenance per month. It is true the income of
petitioner/non-applicant has not been assessed due to the lack
of evidence and documentary evidence. In the circumstances
Rs. 10,000/- per month maintenance is excessive.
8. The learned trial Court has not considered these
facts. So the order of the learned Court below is not proper in
this regard, and the same is required to be modified. In these
circumstances, Rs. 10,000/- is excessive for the petitioner/
non-applicant. Therefore, the same is fixed at Rs. 8,000/- per
month.
9. In view of the aforesaid, the Criminal Revision is
partly allowed to the extent that the respondent/applicant
would be entitled to get Rs. 8,000/- (Rs. Eight Thousand
Only) per month as maintenance.
(Rajendra Kumar Srivastava)
Judge
L.R.
Digitally signed by LALIT SINGH
RANA
Date: 2018.08.20 04:15:23 -07’00’