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Smt. Bharti Jain vs Jitendra Kumar Sand on 12 December, 2017

1 Cr.R.No.1401/2016
Cr.R.No.1782/2016

IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Criminal Revision No.1401/2016

Jitendra Sand, Son of Shri Jethmal
Sand (Jain), Aged about 43 years,
Residents of Kesarbag Main Road,
Yadav Mohalla, Indore (M.P.)
……….Petitioner.
Vs.

1. Smt. Bharti, Wife of Shri Jitendra
Kumar Sand, Aged about 40 years

2. Samkit, Son of Shri Jitendra Sand,
Aged about 19 years

3. Ku. Astha, Daughter of Shri
Jitendra Kumar Sand, Aged about
12 years Being Minor Through
Smt. Bharti, Wife Jitendra Sand

No.1 to 3 Residents of 23,
Maharishi Gautam Nagar,
Surajkund Ward, Khandwa,
District Khandwa (M.P.)
……….Respondents.
2 Cr.R.No.1401/2016
Cr.R.No.1782/2016

Criminal Revision No.1782/2016

1. Smt. Bharti Jain, Wife of Jitendra
Kumar Sand, Aged about 40 years

2. Samkit, Son of Jitendra Kumar
Sand, Aged about 19 years

3. Ku. Astha, Daughter of Jitendra
Kumar Sand, Aged about 13 years
(Minor) Through Natural Guardian
Mother Smt. Bharti, Wife
Jitendra Sand

All Residents of 23, Maharishi
Gautam Nagar, Surajkund Ward,
Khandwa, District Khandwa (M.P.)

……….Petitioners.
Vs.
Jitendra Kumar Sand, Son of Shri
Jethmal Sand (Jain), Aged about 43
years, Resident of Kesarbag Main
Road, Yadav Mohalla, Indore
(M.P.)
……….Respondents.
3 Cr.R.No.1401/2016
Cr.R.No.1782/2016

…………………………………………………………………………………………………..
Present: Hon’ble Shri Justice C.V. Sirpurkar
……………………………………………………………………………………………………
Shri Ashish Shroti, counsel for the petitioner in Criminal
Revision No.1401/2016 and counsel for the respondent in
Criminal Revision No.1782/2016.
Shri Avinash Zargar, counsel for the petitioners in Criminal
Revision No.1782/2016 and counsel for the respondents in
Criminal Revision No.1401/2016.
………………………………………………………………………………………………….
ORDER

(12-12-2017)

1. This Criminal Revision No.1401/2016 is directed against the
order dated 05th May, 2016 passed by the Court of Principal Judge,
Family Court, Khandwa, in MJC No.47/2015, whereby monthly
maintenance allowance @ Rs.8,000/- per month was awarded to each
of the following three respondents namely Bharti (wife), Samkit (son)
and Ku. Astha (daughter) under Section 125 (1) of the Code of
Criminal Procedure from the date of the order. Criminal Revision
No.1782/2016 is also directed against aforesaid order; however, in
Criminal Revision No.1782/2016 filed on behalf of Bharti, Samkit and
Astha, it has been prayed that the maintenance allowance be directed
to be paid from the date of the application under Section 125 of the
Code of Criminal Procedure and not from the date of the order.

2. Since both the aforesaid two criminal revisions are directed
against same impugned order dated 05th May, 2016 they have been
heard analogously and are being disposed of by this common order.

4 Cr.R.No.1401/2016

Cr.R.No.1782/2016

3. The facts giving rise to aforesaid two criminal revisions may be
summarized as hereunder;

4. Respondents in Criminal Revision No.1401/2016 namely Bharti,
Samkit and Astha (hereinafter referred to in this order as “wife”, “son”
and “daughter” respectively) filed an application under Section 125 (1)
of the Code of Criminal Procedure for monthly allowance of
maintenance against petitioner Jitendra (hereinafter referred to as “the
husband”). It was not in dispute that husband Jitendra Kumar and wife
Bharti had married by Hindu rites on 31.01.1996. Son Samkit and
daughter Astha were born in the wedlock and on the date of
application were 17 and 10 years old respectively. Samkit was
congenitally physically challenged and his body could not develop.
This has also not been disputed that the wife had lodged a criminal
case under Sections 498-A, 323, 294 and 506 of the Indian Penal Code
against the husband, his elder brother, sister-in-law (Bhabhi) and
nephew on 13.01.2014. The husband had filed an application under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights
against the wife, which was registered as Civil Suit No.19-A/2014 and
was dismissed by order dated 18.02.2014 on the basis of compromise.
Ultimately, the husband has filed an application under Section 13 of
the Hindu Marriage Act for divorce against the wife on the ground of
cruelty. It is also admitted position that the husband has acquired his
Ll.M. degree and owns a house in Maharishi Gautam Nagar, Khandwa;
wherein, the wife, son and daughter are at present living. The husband
also served as a Guest Lecturer for a while in Law College, Khandwa.
Apart from aforesaid admitted facts, the case of the wife before the
trial Court was that the husband and his family had started to harass
5 Cr.R.No.1401/2016
Cr.R.No.1782/2016

and persecute the wife for bringing in insufficient dowry. After the
birth of physically challenged son Samkit, the instances of cruelty
increased as they held wife Bharti responsible for giving birth to a
physically challenged child. The checkered relationship continued
during which several cruelties were inflicted by the husband on the
wife. Ultimately, she lodged a report under Sections 498-A, 323, 294
and 506 of the Indian Penal Code in the Police Station. The husband
finally deserted the wife on 16.06.2014. Ever since, the wife has been
living along with the children in the house of the husband at Maharishi
Gautam Nagar, Khandwa. The husband has made no provision for the
maintenance of his wife and children. She is being maintained by her
parents. The wife is unable to maintain herself and her children.

5. In his reply the husband has refuted all allegations of demand
for dowry and cruelty made against him and his family members. It
has been submitted that in order to demonstrate his goodwill the
husband had entered into an agreement with the wife to live together
and had withdrawn the application for restitution of conjugal rights;
however, the wife deployed subterfuge and later declined to withdraw
the criminal case for dowry and harassment filed by her. The husband
had taken the children to Indore on 09.04.2014 and had taken a house
on rent for them. He had also got them admitted in Hari Kishan Public
School; however, after about a month and a half the wife returned to
Ashapur on 04.06.2014 without informing the husband. She started to
create pressure upon the husband to get the house situated at Maharishi
Gautam Nagar, Khandwa transferred in her name. For aforesaid
purposes she filed a false report in Tejaji Nagar Police Station in the
night intervening 13th and 14th of June, 2014 and got the husband
6 Cr.R.No.1401/2016
Cr.R.No.1782/2016

humiliated by her friend, who was a Trainee Deputy Superintendent of
Police. Thereafter, she went along with her children on 15.06.2014 to
her father’s place and after that she broke open the lock of the house at
Maharishi Gautam Nagar, Khandwa and has been living there since
18.06.2017. It has further been submitted that the petitioner is not
doing anything at present. He is living at Indore and is preparing for
competitive examinations. The wife has experience of doing business
of beauty products used by ladies and Sarees. She has given the upper
storey of the house at Maharishi Gautam Nagar on rent.

6. After the trial, by elaborate judgment running into 27 pages, the
family Court recorded findings to the effect that after entering into a
love marriage with the wife, the husband subjected her to various acts
of cruelty and desertion for a period of about 18 years, yet she did not
lodge any report in the police and continued to bear everything
stoically. Ultimately, she was constrained to lodge an FIR under
Section 498-A of the Indian Penal Code and other offences against the
husband. In order to compel her to withdraw aforesaid criminal case,
the husband filed an application for restitution of conjugal rights and
entered into an agreement with her in that case; however, he failed to
make the wife withdraw the criminal case. After that, he deserted the
wife and children in a hapless condition at Indore; therefore, they were
constrained to come to Khandwa and live in the house of the petitioner
at Maharishi Gautam Nagar. She never stopped the husband from
visiting the house at Gautam Nagar; thus, it cannot be said that it was
the wife who had deserted the husband. On the other hand, the
husband left the wife and children in a helpless condition and
thereafter has not made any arrangement for their maintenance. Thus,
7 Cr.R.No.1401/2016
Cr.R.No.1782/2016

it is the husband, who had deserted the wife and who is refusing or
neglecting to maintain them. The trial Court also recorded the finding
that though the husband has alleged that the wife had entered into the
business of Sarees and she also used to take tuition for the children up
to 5th standard; he has failed to prove the same; therefore, it cannot be
said that the wife is capable of maintaining herself and her children.

7. In this criminal revision, no serious challenge has been mounted
on behalf of the husband to the findings that he is neglecting to
maintain the wife and children and the wife is unable to maintain
herself and her children; however, learned counsel for the husband has
seriously assailed the findings of the Court to the effect that the
husband approximately earns Rs.50,000/- per month; therefore, he
must pay Rs.24,000/- per month (Rs.8,000/- for each of the
respondent).

8. In this regard, the husband has submitted that at present, he is
doing nothing and is preparing for competitive examinations. He has
disputed the fact that he is an income tax payee; however, he has
admitted that he has a pan card. He has also admitted that the Income
Tax Officer had imposed a penalty in the sum of Rs.5,82,120/- upon
him. He has stated that he had deposited Rs.7,00,000/- and 6,00,000/-
in his Bank account; therefore, the Income Tax Officer had imposed
the penalty; however, he has clarified that aforesaid amount was
received by him from his sisters by way of their contribution towards
the amount for Court fees, which was to be paid in appeal for
enhancement of compensation received by them for their property at
Harsood, which was acquired by the State Government.

8 Cr.R.No.1401/2016

Cr.R.No.1782/2016

9. He had also admitted that he had filed income tax returns (Ex.P-
6 and Ex.P-7) and had received receipt (Ex. P-4) for the income tax
paid. He has also admitted that he had declared himself to be a legal
practitioner in Ex.P-5 but he has clarified that in January, 2014 he had
surrendered his Sanad. He had also admitted that his father has
received an award of compensation for acquisition of his land. He has
also admitted that out of aforesaid amount, he had received his share.
He had also admitted that he had filed an appeal in the land acquisition
case in the High Court and had paid Court Fees of Rs.3,29,702/-. He
has also admitted that he had demanded compensation in the sum of
Rs.89,97,100/- and that he would received the amount with interest.
He has also admitted that he had paid Court Fee in the sum of
Rs.71,000/- on the appeal. He has filed another appeal in which he has
paid Rs.38,770/- by way of Court fees. He had received Rs.25,17,549/-
in the year 2004-2005 by way of his share in the partition of the house.
He had received Rs.3,00,000/- as compensation under protest on
11.11.2000; however, he has denied that he has been coaching students
and is earning Rs.30,000/- to Rs.35,000/- per month.

10. He has admitted that he pawns articles (Ex. P-43);
however, he has admitted that his father was in the business of gold
and silver ornaments. He has also admitted that he had spent
Rs.8,00,000/- to Rs.10,00,000/- for the construction of the house. In
paragraph no.31 of his cross-examination he has admitted that the
diary article A-1 belonged to him and he had made entry nos. P-46, 47,
48, 49, and 50 therein and has also admitted that he had given loan
through aforesaid entries after keeping gold and silver ornaments by
way of security but it has been argued that aforesaid diary is old.

9 Cr.R.No.1401/2016

Cr.R.No.1782/2016

11. On the basis of aforesaid admissions made by the husband in his
cross-examination, the family Court had recorded findings to the effect
that the husband is a man of means. He is a post graduate in law. He
also had licence to practice law. He is a money lender and has
experience of making and dealing in ornaments. The trial Court had
also observed that the petitioner is admittedly living in an expensive
city like Indore for a period of over two years. He has not explained if
he does not earn anything, how is he maintaining himself. The husband
had received various sums by way of compensation, has paid large
amounts by way of Court Fee on appeals and has also received his
share after partition of ancestral house; therefore, the Court estimated
husband’s income to the tune of Rs.50,000/- per month.

12. Learned counsel for the husband has assailed the aforesaid
findings mainly on the ground that they are based upon estimation and
surmises and has no real foundation. It has also been contended that
the trial Court has failed to take into account the fact that the wife and
children, at present, are living in the house belonging to the husband
and are; therefore, not required to spend anything by way of rent;
therefore, the allowance of Rs.24,000/- per month is excessive.

13. Learned counsel for the wife and children has opposed this
criminal revision.

14. In the opinion of this Court, where the husband does not belong
to a fixed income group, the wife is always under a handicap to collect
tangible evidence with regard to the income of the husband. However,
in the present case, the wife has succeeded in bringing enough material
on record to indicate that the husband is concealing his real income.
On the basis of the aforesaid admissions made by the husband, the
10 Cr.R.No.1401/2016
Cr.R.No.1782/2016

Family Court was justified in estimating the income of the husband at
Rs.50,000/- per months. At any rate, the husband is a physically
capable and educated person. He has a physically challenged grown up
son and he cannot escape his responsibility to maintain his wife and
children. They obviously belong to affluent background.

15. However, the Court is of the view that the learned Principle
Judge Family Court has failed to give due weightage to the fact that at
present, the wife and children are admittedly living in the house
belonging to the husband and are therefore, not required to spend
anything on housing; therefore, it would be appropriate to marginally
reduce the monthly amount of maintenance awarded to the wife and
daughter. Obviously due to the physical affliction the son suffers from,
it would be inappropriate to reduce his allowance.

16. There is no evidence on record to indicate that the husband has
tried to unduly protract the proceedings before the family Court. There
is also no other justification for awarding maintenance from the date of
the application especially in view of the fact that husband does not
belong to a fixed income group. Thus, there is no ground to award the
maintenance from the date of the application.

17. On the basis of foregoing conclusion, the Criminal Revision
No.1401/2016 filed by the husband is liable to be partly allowed and
Criminal Revision No.1782/2016 filed on behalf of the wife and
children deserves to be dismissed.

18. Consequently, it is directed that

(i) the monthly allowance payable to wife Bharti and daughter Astha
shall be reduced from Rs.8,000/- per month each to Rs.6,000/- per
11 Cr.R.No.1401/2016
Cr.R.No.1782/2016

month each. The monthly allowance for son Samkit is maintained at
Rs.8000/- per month.

(ii) The Criminal Revision No.1782/2016 filed on behalf of
the wife and children, is dismissed.

The parties shall bear their own cost of these criminal revisions.

(C.V. Sirpurkar)
Judge
taj.

Digitally signed by
TAJAMMUL HUSSAIN KHAN
Date: 2017.12.13 21:58:01

-08’00’
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR

Cr. R. No.1401/2016

Jitendra Sand

Vs.

Smt. Bharti and others

AND

Cr. R. No.1782/2016

Smt. Bharti and others

Vs.

Jitendra Kumar Sand

ORDER

Post for : 12.12.2017

(C.V. Sirpurkar)
Judge

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