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Ashish Khare vs Smt Archana @M Sonu Khare on 20 August, 2018

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
———————————————————————-
Shri Sharad Gupta, learned counsel for the applicant.
Shri Jitesh Shrivastava, learned counsel for the
respondent.
———————————————————————–
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-
2

Cr.R. No. 1804/2015

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
3

Cr.R. No. 1804/2015

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
4

Cr.R. No. 1804/2015

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
5

Cr.R. No. 1804/2015

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,
6

Cr.R. No. 1804/2015

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’

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