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Smt. Anju Mishra vs Arun Mishra on 31 July, 2018

THE HIGH COURT OF MADHYA PRADESH AFR
1 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

Indore, Dated : 31/07/2018
Shri Nilesh Dave, Advocate for applicants.
Shri Mohan Sharma, Advocate for respondent.

This application under Section 482 of Cr.P.C. has been
filed against the order dated 20/2/2015 passed by the Additional
Sessions Judge, Khachrod, District Ujjain in Criminal Revision
No.217/2013, by which the order dated 26/6/2013 passed by
JMFC, Nagda, District Ujjain in M.Cr.C. No.16/2012 was
affirmed.

By order dated 26/6/2013 the JMFC, Nagda, District Ujjain
partially allowed the application filed by the applicants under
Section 125 of Cr.P.C. The application filed by applicant no.1
was rejected, whereas the application filed on behalf of
applicant no.2 was allowed and the respondent was directed to
pay the maintenance amount to the applicant no.2 at the rate of
Rs.1,500/- per month.

The necessary facts for disposal of present application in
short are that the applicants filed an application under Section
125 of Cr.P.C. on the allegation that the applicant no.1 was
married to the respondent on 21/11/2007 as per Hindu rites and
rituals and the applicant no.2 has born out of their wedlock. It
was mentioned in the application that sufficient dowry was given
at the time of marriage and the applicant no.1 has performed
her marital duties properly, however, the mother of the
respondent and his sisters Geeta and Meena were harassing
the applicant no.1 and they were provoking the respondent to
demand dowry from her parents and because of that she was
being harassed. It was further alleged that the respondent under
the guidance of his family members used to abuse her and beat
her and was pressurizing her to bring a motorcycle, furniture as
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2 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

well as cash amount from her parents. Under the hope and
belief that the behaviour of the respondent and his family
members would improve, the applicant no.1 continued to bear
the harassment at the hands of the respondent. The applicant
no.1 ultimately lodged a report on 18/9/2011 against the
respondent, however, the police did not take any action and
closed the report under Section 155 of Cr.P.C. After this, the
behaviour of the respondent and his family members became
more cruel towards the applicants and thereafter the applicant
no.1 was turned out of her matrimonial house after beating her.
Accordingly, the applicant no.1 lodged a report against the
respondent and his family members for offence under Section
498-A of IPC and on the basis of the said report Crime
No.302/2010 was registered. During pendency of those
proceedings the applicant no.1 and the respondent entered into
a compromise on the promise made by the respondent that he
would keep the applicant no.1 properly and also tendered the
apology for his previous misbehaviour and since the applicant
no.1 was interested in saving her marital life, therefore, she
forgave him and filed an application for compounding and
started living with the respondent. After the reconciliation, the
behaviour of the respondent and his family members remained
proper, but after some time they again started harassing her and
with an intention to take revenge of the FIR lodged by the
applicant no.1, the respondent got a complaint filed against the
applicant and her family members through her sister-Geetabai
and thereafter, turned the applicant no.1 out of her matrimonial
house. In spite of all possible efforts, the respondent did not
agree to keep the applicant no.1 with him and accordingly, the
applicant no.1 issued a notice on 17/11/2011 asking for
THE HIGH COURT OF MADHYA PRADESH AFR
3 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

maintenance, but the respondent did not pay the maintenance.
Accordingly, the applicant filed an application for grant of
maintenance under Section 125 of Cr.P.C. It was also
mentioned in the application that the respondent is earning
Rs.5,000/- per month by way of salary, as he is working as a
contract teacher and is also earning Rs.10,000/- by running
tution classes. The applicant no.1 has no independent source of
income and is unable to maintain herself and is dependent on
her father. Her father does not have much income, so that he
can look after the applicants. Accordingly, a prayer was made
for grant of Rs.5,000/- per month to the applicant no.1 and
Rs.2,000/- to the applicant no.2.

Respondent filed his reply and pleaded that since the
applicant no.1 had lodged a false report for offence under
Section 498-A of IPC, therefore, she agreed for compromise.
His sister has also lodged a criminal complaint against the
applicant no.1 and her brother-Devendra Pandey, which is
pending and by way of counterblast to the complaint filed by the
sister of the respondent, the present application has been filed.
It was further alleged that the applicant no.1 herself has broken
all her marital ties with the respondent and she on her own is
residing voluntarily in her parents home and even today the
respondent is ready and willing to keep the applicants with him.
It was further alleged that since the parents of the applicant no.1
are more financially strong in comparison to the respondent,
therefore, the applicant no.1 is not ready and willing to spend
her life in limited resources and only because of the intervention
of her brother and other family members, she is creating all
sorts of trouble in her matrimonial house.

The trial court after recording the evidence of the parties,
THE HIGH COURT OF MADHYA PRADESH AFR
4 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

partially allowed the application and awarded an amount of
Rs.1,500/- per month to the applicant no.2, whereas rejected
the application filed on behalf of applicant no.1 on the ground
that she is residing separately without any reasonable reason.

Being aggrieved by the order dated 26/6/2013 passed by
the JMFC, Nagda, District Ujjain in M.Cr.C. No.16/2012, the
applicants filed a revision before the Court of Fourth Additional
Sessions Judge, Khachrod, District Ujjain, which was registered
as Criminal Revision No.217/2013, however, the said revision
has also resulted in dismissal.

Challenging the orders passed by the courts below, it is
submitted by the counsel for the applicants that in fact the
courts below have committed material illegality by rejecting the
claim of the applicant no.1 on the ground that she is residing
separately without any reasonable reason. It is submitted that
the applicant no.1 was being harassed by the respondent and
his family members and accordingly, she lodged a report and on
the basis of which, the respondent and his family members were
tried for an offence under Section 498-A of IPC and since the
respondent promised the applicant no.1 that now he would not
repeat the same mistakes, which he had committed on earlier
occasion, therefore, the application for compounding of offence
was filed. Since the offence under Section 498-A of IPC is not
compoundable, therefore, the said application was rejected by
the Magistrate and in order to save her marital life, the applicant
no.1 on the very same day did not depose anything against the
respondent, as a result of which, he was acquitted. This shows
the attempt on the part of the applicant no.1 to reconcile the
matter and to save her marital life, however, because of
excessive intervention of the sisters and the mother of the
THE HIGH COURT OF MADHYA PRADESH AFR
5 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

respondent, the respondent under the teachings of his family
members continued to harass and treat the applicant no.1 with
cruelty and accordingly, she was turned out of her matrimonial
house and under these circumstances, it cannot be said that the
applicant no.1 is residing separately without any reasonable
reason.

Per contra, it is submitted by the counsel for the
respondent that both the courts below after appreciating the
evidence have given concurrent findings of fact and therefore, in
exercise of power under Section 482 of Cr.P.C. the finding of
fact should not be interfered with unless and until they are
perverse and no perversity has been pointed out by the counsel
for the applicants and, therefore, this application filed under
Section 482 of Cr.P.C. is liable to be rejected.

Heard learned counsel for the parties.

The applicant no.1 had examined herself as PW-1, her
father Maheshchand as PW-2, her neighbour Santosh Sahu as
PW-3 and her brother Devendra Pandey as PW-4, whereas the
respondent examined himself as DW-1 and did not examine any
other witness in his support.

By referring to the evidence of the parties, it is submitted
by the counsel for the respondent that the behaviour of the
respondent and his family members was not good and after
some time of marriage, they started harassing her on the ground
of bringing less dowry. They were demanding motorcycle and
other household articles alongwith cash amount. Consequently,
she lodged the FIR and the respondent and his family members
came to her parents home and tendered their apologies and in
order to save her married life, she compromised the matter.
After the compromise, behaviour of the respondent was good for
THE HIGH COURT OF MADHYA PRADESH AFR
6 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

2-3 months, but thereafter again he started abusing her and
beating her on the ground of dowry. The monthly income of the
respondent is Rs.10,000/- and he is also running tuition classes.
It is submitted that specific statement was given by the applicant
no.1 that the sister of the respondent is residing with the
respondent and, therefore, the suggestion was given that
because of this fact the applicant no.1 has a grievance that why
the sister of the respondent is residing in the said house.
Although the suggestion was denied, but it appears that since
the sister of the respondent is residing with the respondent,
therefore, the applicant no.1 has a grievance. The counsel for
the respondent also pointed out the admission made by the
applicant no.1 in her cross-examination that in case if the
respondent agrees to reside at a distant place from the existing
house, then still she is ready and willing to stay with the
respondent. By referring to the application filed under Section
125 of Cr.P.C., it is further submitted by the counsel for the
respondent that since the applicant no.1 was aggrieved by the
fact that the mother and sister of the respondent are residing
with him, therefore, she wanted that respondent should separate
himself from his family members and should stay alongwith the
applicant no.1 in a separate house and only because of this,
she was creating all sorts of nuisance in her matrimonial house
and accordingly, without any reasonable reason she is residing
separately. By referring to the evidence of applicant no.1, it is
further submitted by the counsel for the respondent that in fact it
is the applicant no.1 who wants that the respondent should
reside with her separately from his family members. The house
of the father of the applicant no.1 is situated in the same colony
and she used to go to her parents home as per her own wishes
THE HIGH COURT OF MADHYA PRADESH AFR
7 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

and now she is residing separately without any reasonable
reason. However, the counsel for the respondent accepted that
in the cross-examination, the respondent has admitted that the
matrimonial house of his sister is in Bihar, but she is residing at
Nagda near the house of the respondent. A suggestion was
given to the respondent that his sisters are interfering too much
in the family life of the respondent and the applicant no.1 and
they used to fight with the applicant no.1, however, the said
suggestion was denied. It is further submitted by the counsel for
the respondent that even if the entire allegations are accepted,
then it is clear that the applicants have failed to prove beyond
reasonable doubt that the applicant no.1 was being harassed
because of any demand of dowry. The basic allegation is that
since the applicant no.1 was aggrieved by the fact that the
sisteres of the respondent are also residing in the same house,
therefore, she wants a separate accommodation and under
these circumstances, the courts below did not commit any
mistake in rejecting the claim of the applicant no.1 for
maintenance amount.

So far as the submission made by the counsel for the
respondent that unless and until there is a harassment because
of non-fulfillment of demand of dowry, the wife cannot claim
maintenance is concerned, the same cannot be accepted.
Cruelty does not necessarily mean that the said cruelty be only
in connection with dowry or any property. Any sort of mental or
physical cruelty would be sufficient. Section 125 of Cr.P.C. reads
as under:-

“125. Order for maintenance of wives, children
and parents.–(1) If any person having
sufficient means neglects or refuses to
maintain–

THE HIGH COURT OF MADHYA PRADESH AFR
8 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority,
where such child is, by reason of any physical
or mental abnormality or injury unable to
maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the first class may, upon proof
of such neglect or refusal, order such person
to make a monthly allowance for the
maintenance of his wife or such child, father or
mother, at such monthly rate as such
Magistrate thinks fit and to pay the same to
such person as the Magistrate may from time
to time direct:

Provided that the Magistrate may order the
father of a minor female child referred to in
clause (b) to make such allowance, until she
attains her majority, if the Magistrate is
satisfied that the husband of such minor
female child, if married, is not possessed of
sufficient means:

[Provided further that the Magistrate may,
during the pendency of the proceeding
regarding monthly allowance for the
maintenance under this sub-section, order
such person to make a monthly allowance for
the interim maintenance of his wife or such
child, father or mother, and the expenses of
such proceeding which the Magistrate
considers reasonable, and to pay the same to
such person as the Magistrate may from time
to time direct:

Provided also that an application for the
monthly allowance for the interim maintenance
and expenses of proceeding under the second
proviso shall, as far as possible, be disposed
of within sixty days from the date of the service
of notice of the application to such person.]
Explanation.–For the purposes of this
THE HIGH COURT OF MADHYA PRADESH AFR
9 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

Chapter,–

(a) ―minor means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875) is deemed not to have attained his
majority;

(b) ―wife includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried.
[(2) Any such allowance for the maintenance
or interim maintenance and expenses of
proceeding shall be payable from the date of
the order, or, if so ordered, from the date of
the application for maintenance or interim
maintenance and expenses of proceeding, as
the case may be.]
(3) If any person so ordered fails without
sufficient cause to comply with the order, any
such Magistrate may, for every breach of the
order, issue a warrant for levying the amount
due in the manner provided for levying fines,
and may sentence such person, for the whole
or any part of each month’s [allowance for the
maintenance or the interim maintenance and
expenses of proceeding, as the case may be,]
remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner
made:

Provided that no warrant shall be issued for
the recovery of any amount due under this
section unless application be made to the
Court to levy such amount within a period of
one year from the date on which it became
due:

Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of
refusal stated by her, and may make an order
under this section notwithstanding such offer,
if he is satisfied that there is just ground for so
doing.

Explanation.–If a husband has contracted
marriage with another woman or keeps a
THE HIGH COURT OF MADHYA PRADESH AFR
10 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

mistress, it shall be considered to be just
ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an
[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as
the case may be,] from her husband under
this section if she is living in adultery, or if,
without any sufficient reason, she refuses to
live with her husband, or if they are living
separately by mutual consent.

(5) On proof that any wife in whose favour an
order has been made under this section is
living in adultery, or that without sufficient
reason she refuses to live with her husband,
or that they are living separately by mutual
consent, the Magistrate shall cancel the
order.”

In the present case, the applicant no.1 has clearly stated
in her application under Section 125 of Cr.P.C. that because of
the intervention of the mother and sisters of the respondent, she
is being harassed by the respondent. Section 125 (4) of Cr.P.C.
deals with the circumstances, in which the wife is not entitled for
maintenance amount. The “cruelty” has not been mentioned in
Section 125 of Cr.P.C. The only requirement is that if a person
neglects or refuses to maintain his wife or his children or his
parents, then an order under Section 125 of Cr.P.C. can be
passed, provided the wife is not living in adultery and without
any sufficient reason, she refuses to live with her husband or if
they are living separately by mutual consent. In order to find out
whether there is any sufficient reason for separate living or not,
then the reason for separate living are to be taken into
consideration and in this context, the behaviour of the husband
would become material and if the husband continuously
behaves in a cruel manner by harassing her either mentally or
physically, then it cannot be expected that in spite of
THE HIGH COURT OF MADHYA PRADESH AFR
11 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

harassment, the wife should continue to live with her husband.
Under these circumstances, if the wife succeeds in establishing
that the behaviour of the husband was cruel towards her, then it
can be said that she has a sufficient reason to live separately
from her husband. Thus, in case of cruelty whether it was in
connection with demand of dowry or any other reason, the wife
can claim maintenance amount from her husband.

If the behaviour of the respondent and his family
members is considered in the light of the evidence led by the
parties as well as in the light of the provisions under Section 125
(4) of Cr.P.C., then it appears that because of unwarranted
excessive interference by the sisters of the respondent, the
behaviour of the respondent was cruel towards the applicant
no.1 and under these circumstances, the applicant no.1 was
well within her rights to live separately from the respondent.
Even otherwise, it is clear from the submissions of the counsel
for the applicant no.1 that when the respondent promised her to
improve his behaviour, then in order to save her married life,
she entered into a compromise and filed an application under
Section 320 of Cr.P.C., however, since the offence under
Section 498-A of IPC is not compoundable, therefore, the said
application was rejected and in order to save her married life,
she did not make any allegation against her in-laws including
the respondent and the respondent was acquitted of the charge
under Section 498-A of IPC. If the intention of the applicant no.1
was to somehow get the respondent punished, then she would
have never entered into a compromise with the respondent and
that shows the basic anxiety of the applicant no.1 to save her
married life and under these circumstances, because of the
excessive intervention by the sisters of the respondent, who
THE HIGH COURT OF MADHYA PRADESH AFR
12 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

himself has admitted that the matrimonial house of one of his
sisters is in Bihar, but she is residing quite nearer to the house
of the respondent, it is clear that the allegation of interference by
the sisters of the respondent in the married life of the
respondent and harassment by the respondent under the
guidance and provocation of his sisters appears to be correct.
Furthermore, it has also been accepted by the respondent that
his sister had filed a criminal complaint against the applicant
no.1 and her brother. Thus, it is clear that the respondent and
his sisters were creating all sorts of trouble for the applicant
no.1, as a result of which, she was deprived of her peaceful
married life and under these circumstances, it cannot be said
that if the applicant no.1 was residing in her parents home
without any reasonable reason.

Under these facts and circumstances of the case, this
Court is of the considered opinion that the courts below did not
consider the evidence led by the parties in its proper
perspective and, therefore, the finding of fact of living separately
without any sufficient reason appears to be perverse.

Accordingly, the orders dated 26/6/2013 in M.Cr.C.
No.16/12 and 20/2/2015 in Criminal Revision No.217/2013
passed by the trial court and the revisional court are hereby set
aside and it is held that the applicant no.1 is also entitled for
maintenance amount, as she is unable to maintain herself and
the respondent has neglected to maintain her.

So far as the question of quantum of maintenance amount
is concerned, it is clear from the evidence of the parties that the
respondent was working as a teacher on contract basis and
although there is an averment that he is also running coaching
classes, however, there is no evidence with regard to the
THE HIGH COURT OF MADHYA PRADESH AFR
13 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

income of the respondent from the coaching classes. However,
one thing is clear that both the parties are financially not strong.

The Supreme Court in the case of Shamima Farooqui
v. Shahid Khan, (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 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,
THE HIGH COURT OF MADHYA PRADESH AFR
14 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

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 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 HIGH COURT OF MADHYA PRADESH AFR
15 M.Cr.C. No.2570/2015
(Smt. Anju Mishra and another Vs. Arun Mishra)

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.”
Considering the facts and circumstances of the case, this
Court is of the considered opinion that the applicant no.1 is also
entitled for maintenance amount at the rate of Rs.2,000/- per
month.

So far as the maintenance amount awarded to the
applicant no.2 is concerned, considering the financial as well as
social status of the parties, this Court is of the considered
opinion that the maintenance amount of Rs.1,500/- awarded to
the applicant no.2 by the courts below is justified and does not
require any interference.

Since the application for grant of maintenance under
Section 125 of Cr.P.C. was filed on 23/12/2011 and the trial
court by order dated 26/6/2013 had awarded the maintenance
amount of Rs.1,500/- to the applicant no.2 from the date of the
order, i.e. 26/6/2013, therefore, it is directed that the
maintenance amount of Rs.2,000/- to the applicant no.1 shall
also be payable from the date of the order passed by the
Judicial Magistrate First Class, Nagda, District Ujjain,
i.e.26/6/2013.

The application succeeds and is hereby allowed.

(G.S. Ahluwalia)
Judge
Arun*

ARUN KUMAR MISHRA
2018.08.06 10:18:45 +05’30’

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