SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Bhupendra Shinde vs Smt. Hemlata @ Nandini Shinde And … on 13 August, 2018

1
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

Indore, Dated: 13/08/2018
Ms. Rekha Shrivastava, Counsel for the applicant.
Shri Devendra Kumar Goyal, Counsel for the
respondents.

Heard on the question of admission.

With the consent of the parties, the case is heard
finally.

This Criminal Revision under Section 397,401 of
Cr.P.C. has been filed calling in question the order dated
26-6-2013 passed by 1st Additional Principal Judge,
Indore in M.J.C. No. 457/2010 by which the application
filed by the respondents has been allowed and the
respondent No.1 has been awarded Rs.3000/- per month
and respondent no.2 has been awarded Rs.1000/- per
month by way of maintenance.

The necessary facts for the disposal of the present
revision in short are that the respondents filed an
application under Section 125 of Cr.P.C. on the
allegations that the respondent no.1 was married to the
applicant on 29.4.2008 as per Hindu Rites and Rituals.
Sufficient dowry was given at the time of marriage. For
some time after the marriage, the behavior of the
applicant and his family members towards the
respondent No.1 was good, however, thereafter they
started demanding Rs.5 lacs and also started harassing
and beating the respondent no.1, due to non-fulfillment
of their demand of dowry. However, with a hope and
belief, that the behavior of the applicant and his family
2
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

members would improve, She continued to stay in her
matrimonial house. In the meanwhile, the respondent
no.1 also gave birth to the respondent no.2. However,
the atrocities of the applicant and his family members
continued and ultimately in the month of February, 2010,
the respondents were turned out of the matrimonial
house because of non-fulfillment of their demand of
dowry. When the applicant went to the police station for
lodging the F.I.R., the matter was sent to Parivar
Paramarsh Kendra. The respondent no.1 was forcibly
sent to her matrimonial house and when the respondent
no.1 went there, again She was beaten and was abused
and was once again ousted from her matrimonial house
and the hand of the respondent no.2 was burnt with the
help of hot pressure cooker. Accordingly, She lodged the
F.I.R., in the police station Dhar and crime no. 371/2010
was registered against the applicant and his family
members. Thus, it was pleaded that from thereafter, She
is residing with her parents along with her one year old
daughter. The respondents are unable to maintain
themselves, and the respondent no.1 has no
independent source of income, whereas the applicant is
earning Rs.10,000/- per month by way of salary whereas
the applicant has agricultural land and the applicant has
income from agricultural activities. It was further pleaded
that the applicant is getting an amount of Rs.30,000/-
per month by way of rent and interest. Accordingly, a
prayer for grant of maintenance @ of Rs.15,000/- per
month was claimed.

3

CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

The applicant filed his reply and denied the
allegations. It was pleaded that only the articles worth
Rs.15,000/- were given at the time of marriage, whereas
the family of the applicant had given ornaments worth
Rs.90,000/- to the respondent no.1. As the mother of
the applicant is an old lady, aged about 90 years, and
since, the respondent no.1 was not interested in looking
after her mother-in-law, therefore, She never stayed in
her matrimonial house for long time. She used to go
back to her parent’s house very frequently and without
the permission of the applicant. It was further pleaded
that one brother of the applicant is residing in Dhar,
whereas another brother and elder sister are residing in
Indore. One sister is residing along with the applicant,
but She is staying in a separate room and therefore,
there is no question of harassment by the family
members of the applicant. As the respondent no.1 is a
lady of modern thinking therefore, She was all the time,
insisting that the applicant should also shift to Indore,
however, as the applicant was not in a position to leave
his mother, therefore, in a preplanned manner, She went
to attend the marriage in the family of a relative along
with all of her ornaments, and thereafter, did not bring
the ornaments back. On 29-4-2010, the applicant and
the respondent no.1 had celebrated their marriage
anniversary, however, the respondent no.1 had already
called her father, just one day prior to the marriage
anniversary and on the next day, she came back to
Indore and about a month thereafter, She lodged a false
4
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

report against the applicant on 11-5-2010. The applicant
is working as a salesman and is getting the monthly
salary of Rs.1000/- along with the commission and
accordingly, the monthly income of the applicant is
around Rs.2000-2500/-. Whereas the respondent no.1 is
a literate lady having passed M.Com and is earning Rs.
15,000/- per month by running coaching classes.

The Trial Court after recording the statements of
the parties, allowed the application filed by the
respondents and by order dated 26-6-2013 passed in
M.J.C. No. 457/2010, directed the applicant to pay Rs.
3000/- per month to the respondent no.1 and Rs. 1000/-
per month to the respondent no.2.

Challenging the order passed by the Court below, it
is submitted by the Counsel for the applicant that the
Trial Court has failed to prove that the respondent no.1 is
residing separately without any sufficient cause, and the
Court below has also wrongly assessed the income of the
applicant. The Trial Court should not have added the
income of the mother of the applicant.

Per contra, it is submitted by the counsel for the
respondents, that the applicant was prosecuted for
offence under Section 498-A of I.P.C. and has been
convicted. Thus, it is clear that the applicant had treated
the respondent no.1 with cruelty. Further merely because
the husband claims to have meager income, would not
be sufficient to hold that the wife and the child are either
not entitled for maintenance or they are entitled for
meager amount only.

5

CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

Heard, the learned Counsel for the parties.
During arguments, it has been admitted by the
Counsel for the applicant, that the applicant was
prosecuted for offence under Section 498-A of I.P.C. and
has been convicted but submitted that since, a criminal
appeal is pending, therefore, it cannot be said that the
conviction of the applicant has attained finality.

So far as the question of pendency of the Criminal
Appeal against the conviction of the applicant is
concerned, suffice it to say, that in case the applicant is
acquitted and if he is of the view that his acquittal will
have some bearing on the entitlement of the respondent
no.1 to receive the maintenance, then he can always file
an application under Section 127 of Cr.P.C. for alteration
of maintenance, but at this stage, the conviction of the
applicant cannot be ignored, merely on the ground that
the criminal appeal against the judgment of conviction is
pending.

It is next contended by the Counsel for the
applicant, that the respondent no.1 had given her wrong
residential address and therefore, She is not entitled for
maintenance amount. It is submitted that when the
notice of the present revision was issued by this Court,
then a report was received that the respondent no.1 is
not residing at the given address for the last more than
10 years and only after publication, the respondent no.1
could be served and accordingly She is not entitled for
maintenance amount. To buttress the contentions, the
Counsel for the applicant has relied upon an order
6
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

passed by the Delhi High Court reported in the case of
Kamla Vs. Rati Ram, reported in 2013 SCC online Del

344.
I have considered the submissions made by the
Counsel for the applicant. In the case of Kamla
(Supra), the Delhi High Court, had not refused to grant
interim maintenance to the wife, on the ground that She
had given her incorrect address. On the contrary, the
facts of the said case were that the wife, deliberately
gave the wrong address of her husband and succeeded in
getting the proceedings exparte, but when the Magistrate
realized, then fresh notices at the correct address of the
husband were issued and subsequently, the interim
maintenance was ordered from the date of service of
notice on the husband. Thus, the judgment relied upon
by the Counsel for the applicant does not help the case
of the applicant in any manner.

It is next contended by the Counsel for the
applicant that since, the respondent no.1 herself is
residing separately without any sufficient cause,
therefore, in view of Section 125(4) of Cr.P.C., she is not
entitled for maintenance amount. It is submitted by the
Counsel for the applicant, that it is an admitted position
that the brother of the applicant had gone to the parental
home of the respondent no.1 for taking her back, but
She refused to come back. It is further submitted that
the respondent no. 1 has stated in her cross-examination
that now She does not want to reside with the applicant,
clearly shows that in fact it is the respondent no.1 who
7
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

does not want to join the company of the applicant. It is
further submitted that the respondent no.1 also did not
join the company of the applicant inspite of the direction
of the Parivar Paramarsh Kendra. It is also submitted
that although the proceedings were going on in the
Parivar Paramarsh Kendra, but still the respondent no.1
lodged the F.I.R. It is further submitted that the
respondent no.1 herself had given in writing to the
concerning police Station Ex. D1, to the effect that She
on her own is going back to her parental home. The
Counsel for the applicant has relied upon the judgment
of this Court, passed in the case of Smt Kanti Bai and
another Vs. Ram Naresh Yadav reported in 2014 SCC
Online MP 7354.

Per contra, it is submitted by the Counsel for the
respondents that the evidence of the respondent no.1 to
the effect that She does not wish to reside with the
applicant, cannot be read in isolation and has to be read
along with the allegations of harassment. If a wife is not
treated properly in her matrimonial house, then it cannot
be expected of her to live in her matrimonial house,
inspite of the harassment.

Considered the submissions made by the Counsel
for the applicant.

The applicant himself has relied upon the reports
lodged by the respondent no.1 on 30-4-2010 Ex. D.1,
another complaint dated 30-4-2010, Ex. D.2, and Ex. D.3
and the proceedings of Parivar Paramarsh Kendra dated
11-5-2010, Ex.D.4.

8

CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

So far as the proceedings dated 11-5-2010 of
Parivar Paramarsh Kendra are concerned, it is clear from
these proceedings, that it does not bear the signatures of
the respondent no.1, thus, it is clear that either these
proceedings were drawn in absence of the respondent
no.1 or the respondent no.1 had not agreed to these
proceedings. Be that whatever it may be. The crux of
the matter is that proceedings dated 11-5-2010 does not
bear the signatures of the respondent no.1. Similarly, in
the police complaints Ex. D.1,D.2 and D.3, the
respondent no.1 has specifically made allegations against
the applicant. Further the assertion of the respondent
that now she does not want to reside with the applicant
cannot be read in isolation of the allegations of
harassment. A wife, cannot be compelled to live in her
matrimonial house, inspite of her harassment at the
hands of her in-laws. Thus, it is clear that since, the
applicant had treated the respondent no.1 with cruelty
and was turned out of her matrimonial house, therefore,
She is residing separately in her parents house. Further,
the applicant has also admitted that he has been
convicted for offence under Section 498-A of I.P.C. A
person has a right to lead her life in a dignified manner
and the husband has no right to behave in a cruel
manner, specially when the cruelty is an offence.
Considering the totality of the facts and circumstances of
the case, this Court is of the considered opinion, that the
respondent no.1 is entitled for receiving the
maintenance, as She was treated with cruelty by the
9
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

applicant, and therefore, it cannot be said that the
respondent no.1 was residing separately without any
sufficient reason/cause.

So far as the entitlement of the respondent no.2 to
receive the maintenance amount is concerned, the
applicant has not denied the paternity of the respondent
no.2, therefore, it is held that both the respondents are
entitled for maintenance amount.

It is next contended by the Counsel for the
applicant, that he is working as a salesman in an agency
and is selling the cigarettes and is getting the monthly
salary of Rs.1000/- apart from the commission and thus,
in all he is earning Rs.4000/- per month. So far the
income from the agricultural land is concerned, although
the mother of the applicant might be having 8 bighas of
land but the agricultural income of the mother cannot be
taken into consideration. The Counsel for the applicant
has relied upon the Judgment passed by the Delhi High
Court in the case of Lalita Bhola Vs. Nidhi Bhola and
another reported in ILR (2013) II Delhi 1067.

So far as the question of quantum of maintenance
amount is concerned, the Supreme Court in the case of
Shamima Farooqui Vs. Shahid Khan reported in
(2015) 5 SCC 705 has held as under :

”15. While determining the quantum of
maintenance, this Court in Jasbir Kaur Sehgal
v. District Judge, Dehradun (1997) 7 SCC 7
has held as follows: (SCC p. 12, para 8)
“8. … The court has to consider the
status of the parties, their respective
needs, the capacity of the husband to
10
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

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 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.”

16. Grant of maintenance to wife has
been perceived as a measure of social justice
by this Court. In Chaturbhuj v. Sita Bai
(2008) 2 SCC 316, it has been ruled that:
(SCC p. 320, para 6)
“6. … 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 Capt. Ramesh
Chander Kaushal v. Veena Kaushal
(1978) 4 SCC 70 falls within the
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 .”

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
11
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

is unable to maintain the wife due to financial
constraints as long as he is capable of
earning.

18. In this context, we may profitably quote a
passage from the judgment rendered by the
High Court of Delhi in Chander Parkash Bodh
Raj v. Shila Rani Chander Prakash 1968 SCC
Online Del 52 wherein it has been opined
thus: (SCC On Line Del para 7)

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-bodied 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.
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 her
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.”
12
CRR No.1053/2013
Bhupenda Shinde vs. Smt. Hemlata @ Nandini Shinde Anr.

It is not the case of the applicant, that he is a
handicapped person. Thus, where the applicant is an able
bodied person, then he cannot say that either he would
not grant any maintenance amount to his wife and child
or he is liable to pay only a meager and nominal amount
of maintenance. To maintain his wife and child, it is the
primary obligation of the husband and the wife and the
child cannot be compelled to live the life as a destitute.
The Trial Court has awarded Rs.3000/- per month to the
respondent no.1. If the price index, cost of living etc. is
considered, then this Court is of the considered opinion
that the amount of Rs.3000/- per month cannot be said
to be on a higher side. Similarly, an amount of Rs.1000/-
per month has been awarded to the respondent no.2,
which by no stretch of imagination can be said to be on a
higher side.

Thus, this Court is of the considered opinion, that
the Court below did not commit any mistake is allowing
the application filed by the respondents under Section
125 of Cr.P.C. Accordingly, the order dated 26-6-2013
passed by 1st Additional Principal Judge, Indore in M.J.C.
No. 457/2010 is hereby affirmed.

This revision fails and is hereby dismissed.

(G.S.Ahluwalia)
(alok) Judge

ALOK KUMAR
2018.08.14 20:11:09 +05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh