HIGH COURT OF MADHYA PRADESH AT JABALPUR
M.Cr.C. No. 9059/2006
Seema Bai Halwai Anr.
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.
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
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
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
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.
16. With the aforesaid, the petition stands partly allowed and
(Smt. Anjuli Palo)