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Seema Bai Halwai vs Om Prakash on 20 July, 2018

HIGH COURT OF MADHYA PRADESH AT JABALPUR

M.Cr.C. No. 9059/2006

Seema Bai Halwai Anr.
Vs.
Om Prakash s/o Ramesh Prasad Halwai

[Single Bench : Hon’ble Smt. Anjuli Palo, Judge]
——————————————————————————————
Shri Lalji Kushwaha, learned counsel for the petitioners.
None for the respondent.
——————————————————————————————
ORDER

(20/07/2018)

This petition has been filed by the petitioners under Section

482 of Cr.P.C. to set aside the order dated 12.04.2006 passed by the Third

Additional Sessions Judge (Fast Track Court) Sidhi arising out of the order

dated 06.10.2005 passed in M.Cr.C.No. 196/2004 by the Court of Judicial

Magistrate First Class.

2. Brief facts of the case are that petitioner No.1 and respondent

are husband and wife. Petitioner No. 2 is their minor son. It is also not in

dispute that the petitioners reside separately from the respondent.

Marriage of petitioner No. 1 was solemnised with respondent on

02.02.2001. She was living with the respondent at her matrimonial house.

Thereafter, the respondent started demanding motor-cycle and cash

amount of Rs. 50,000/- as dowry. His demand increased after the birth of

petitioner No. 2 for color television and refrigerator also. Respondent

harassed petitioner No. 1 for non-fulfillment of his demand. Ultimately,
2 M.Cr.C.No. 9059/2006

he departed the petitioners. Thereafter, he filed an application under

Section 9 of the Hindu Marriage Act to humiliate petitioner No. 1. An

order for restitution of conjugal rights was passed. When the petitioners

went to the house of respondent on 05.10.2004, mother of the respondent

again demanded dowry and turned her out from their house. The

respondent did not want to keep the petitioners with him. The petitioners

are unable to maintain themselves.

3. It is alleged that the respondent is running a hotel and earning

Rs. 12,000/- per month. Therefore, the petitioner filed an application

under Section 125 of Cr.P.C. before the trial Court which was dismissed

against petitioner No. 1. However, Rs. 1500/- per month was awarded in

favour of petitioner No. 2.

4. Against the order of the Judicial Magistrate First Class, the

petitioners as well as the respondent filed revision. Learned revisional

Court below has decided both the revisions by a common order and

reduced the maintenance allowance of Rs. 1500/- to Rs. 1000/- per month

for petitioner No. 2. The revisional Court upheld the order of refusal to

grant maintenance to petitioner No. 1. Hence, this revision is preferred by

the petitioners.

5. The respondent denied his liability to provide maintenance

allowance to the petitioners. He submitted before the Courts below that

the petitioner No. 1 wrongly claimed maintenance allowance from him on

the false ground. Petitioner No.1 herself is able to earn. She is running a
3 M.Cr.C.No. 9059/2006

hotel. She herself is not inclined to reside with the respondent. He is

willing to keep his minor son with him and he never demanded any dowry

from petitioner No.1. He is unemployed. He has no source of income.

Hence, he prayed that the petition filed by the petitioners is liable to be

dismissed.

6. The order of learned trial Court was maintained by the lower

revisional Court. The Court found that a decree of conjugal right has been

passed against petitioner No.1 even though, she was not willing to reside

with the respondent to perform her marital duties. Therefore, a false

application has been filed by her for maintenance allowance. The

revisional Court also found that Rs. 1000 per month was claimed by

petitioner No.2 but the trial Court wrongly awarded Rs. 1500/- as

maintenance allowance against the respondent which was not claimed by

the petitioner No. 2. Therefore, the revisional Court reduced the

maintenance allowance from Rs. 1500/- to Rs. 1000/- per month.

7. The aforesaid order was challenged by the petitioners on the

ground that the learned court below has failed to consider the oral and

documentary evidence, which shows the cruel behaviour of the respondent

and his relatives against the petitioner no.1 in order to keep her out of their

house. The Courts below also committed error by not considering

sufficient justification to deny for procuring the stay against the decree of

restitution of conjugal rights and for staying separately from the

respondent. The petitioner No. 1 has no independent source of income.
4 M.Cr.C.No. 9059/2006

The learned first revisional Court wrongly reduced the maintenance

amount for petitioner No. 2 and dismissed the petition for maintenance

filed by petitioner No. 1. Hence, the petitioners have prayed to reverse the

impugned order and direct the respondent to pay maintenance amount of

Rs. 3000/- per month to the petitioners.

8. Heard learned counsel for the petitioner. None appeared for

the respondent to argue the matter. Perused the record.

9. Relationship between petitioner No. 2 and the respondent is

not disputed. At the time of presentation this petition in the year 2006, his

age was about three years. There is no bar for the Court to award

appropriate allowance exceeding from the prayer.

10. Looking to the necessity of daily needs, medicines, education,

etc. allowance of Rs. 1,000/- per month is on the lower side and not

adequate to fulfill the requirement of a minor boy. Hence, this Court finds

that the revisional Court wrongly reduced the maintenance allowance for

petitioner No. 2.

11. With regard to petitioner No. 1, conduct of the respondent

shows that he was not willing to reside with petitioner No. 1. After

passing the decree under Section 9 of the Hindu Marriage Act, he has not

inclined to live together with petitioner No. 1. She categorically deposed

that she went to her matrimonial house after informing the police but the

respondent and his mother refuse her to enter in their house. Such report

also gave by the petitioner No. 1 to the police and with this regard her
5 M.Cr.C.No. 9059/2006

testimony is duly corroborated by her relatives. It indicates that the

respondent malafidely instituted a case under Section 9 of the Hindu

Marriage Act against the petitioner No. 1 to avoid her and save himself

from the liability to maintain her. During the period when the petitioner

No. 1. stayed at her father’s place, the husband/respondent did not offer to

send her any maintenance allowance for her and the minor son. These

circumstances are sufficient to lead to the conclusion that there was

neglect and refusal to maintain on behalf of the husband and wife could

justify her living at her father’s place.

12. Maintenance to the wife is her right. It cannot be denied

merely because the husband obtained a decree fro restitution of conjugal

rights against the wife. The onus is on the husband or father to show the

means after being proved by the wife that husband has sufficient means to

pay maintenance. Meager income or no income of husband is no ground

for husband’s inability to pay maintenance.

13. “Having sufficient means” does not signify only visible means.

If one is healthy and able bodied. He must be held to have means to

support his wife and it has to be inferred that he has the means to pay the

maintenance. In case of Durga Singh Lodhi Vs. Prembai 1990 Cr.LJ 2065,

the Divisional Bench of this Court held that – “Mere absence of visible

means or real estate will not entitle such a person to escape the liablity to

pay maintenance.

14. Hence, this Court finds the learned trial Court wrongly dismiss
6 M.Cr.C.No. 9059/2006

the claim of the petitioner under Section 125 of the cr.P.C. The respondent

is the husband of petitioner No. 1. He is healthy and fit to do any work to

earn money and maintain his wife and minor son. Even though, there is a

hotel jointly conducted by the respondent and his other family members.

The petitioner No. 1 is also entitled to get maintenance allowance from the

respondent as per his status. Further, a father cannot refuse to maintain his

son because he was living with his mother. If he wants custody, he must

enforce his right in a civil court or even then respondent / father merely

filed an application under Guardian and Wards Act for the custody of

minor child is not sufficient to show that he was ready discharge his duty

to maintain his son.

15. Thus, setting aside the impugned order dated 12.04.2006

passed by the revisional Court under Section 125 of Cr.P.C. this Court

awards Rs. 2,500/- per month in favour of petitioner No. 1 and Rs. 3,000/-

per month in favour of petitioner No. 2 as maintenance allowance which is

to be paid by the respondent from the date of order of the trial Court i.e.

06.10.2005.

16. With the aforesaid, the petition stands partly allowed and

disposed of.

(Smt. Anjuli Palo)
Judge
vidya

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