M.Cr.C. No. 10277/2017
Jabalpur, Dated: 13/12/2017
Ms. Vandana Tripathi, learned counsel for the petitioners.
Shri M.L. Sharma, learned counsel for the respondent No.
Shri Deependra Mishra, learned G.A for the respondent
This petition under Section 482 Cr.P.C has been filed
challenging the order dated 22.02.2017, passed by 2nd A.S.J,
Gadarwara in Criminal Revision No. 57-63/14, wherein the
petitioners claim for enhancement of maintenance was
2. The petitioner No. 1 is the wife of respondent No. 1
whereas petitioner No. 2 is the minor son of the petitioner No. 1.
The petitioner No. 1 and 2 filed an application under Section 125
of the Cr.P.C, against the respondent and pleaded that the
respondent after the marriage treated the petitioner No. 1 with
cruelty for she brought less dowry. She informed her parents. But
thinking that the family life of the petitioner No. 1 should not be
shattered, they did not tell anything to to anyone and did not
lodge any report. Subsequent thereto the respondent continuously
harassed the petitioner No. 1, therefore, petitioner No. 1 started
living at her parental home. She tried to approach the Family Re-
conciliation Centre, Gadarwara on 22.05.2012. Thereafter, the
respondent settled the dispute and admitted his wrongs and took
the petitioner No. 1 with him.
3. The respondent filed an application for restitution of
conjugal rights under Section 9 of the Hindu Marriage, 1955
before the District Judge, in which the petitioner and the
respondent entered into compromise and petitioner No. 1 started
living with the respondent/husband. But the respondent suffered
an accident and for four five months, he was bedridden.
Petitioner No. 1 constantly served him. At that time, she was
pregnant for about two-three months but after the respondent was
discharged from the hospital and gained his normal health, he
again maltreated the petitioner. Hence, she left the matrimonial
home. Respondent filed an application under Section 9 of the
Hindu Marriage Act, 1955. The respondent is running a Welding
Workshop of Tractor Trolly and agricultural appliances.
According to the petitioner, the respondent was earning five-six
lacs per year. Besides, he has other income from agriculture. She
prayed to provide Rs.5,000/- per month as maintenance for
4. The respondent denied all averments and submitted that
the petitioner No. 1 was never mal-treated for demand of dowry.
The petitioner No. 1/wife was under treatment for headache
immediately after marriage and she used to take lot of medicines.
In the year 2009, she did not return to the matrimonial home after
she left for her parental home during Diwali, 2009. When she did
not return for five-six months, the respondent approached the
Family/Re-conciliation Centre. After their re-conciliation, she
promised to live with the respondent and returned to the
respondent’s house. Again during Raksha Bandhan in the year
2010, she left the house of the respondent along with her
5. Subsequently, an application under Section 9 of the Hindu
Marriage Act, 1955 was filed and compromise was arrived at.
The respondent suffered an accident and later the petitioner left
her marital house, stating that she is not willing to live with a
disabled person. The respondent had fracture on the hand and
legs. Subsequently, another application under Section 9 of the
Hindu Marriage Act was filed in which a decree for restitution of
conjugal right has been granted in favour of the
respondent/husband. The respondent is having a small welding
shop and he is not earning much. He is a disabled and he has no
means of earning.
6. Learned J.M.F.C allowed the petition and ordered that the
respondent should pay Rs.500/- to the minor petitioner and
Rs.1,000/- to the petitioner No. 1 every month as maintenance.
7. The petitioner preferred Criminal Revision No. 57/14 for
enhancement of maintenance whereas the respondent preferred
Criminal Revision No. 63/14 for setting aside the order passed by
the learned J.M.F.C.
8. Learned A.S.J vide order dated 22.02.2017 dismissed both
the revisions. The petitioner has preferred this petition on the
ground that the father of the respondent has admitted that the
respondent has a welding shop. Besides, he has also agricultural
income though a partition has not been affected.
9. It is claimed that the respondent is earning five-six lacs per
year and he also submits income tax return, therefore, the amount
of maintenance granted is meagre and the amount be enhanced.
10. On behalf of the respondent, the same is opposed and it is
stated that the respondent’s earning is less. He met with an
accident and suffered injuries. Therefore, he is not in a position
to make any payment. On the other hand, he has filed Criminal
Revision No. 3449/2017 for setting aside the order impugned.
11. Perused the record.
12. The income of the respondent has been admitted by
Khoobchand, the father of respondent. In his statement he admits
that the respondent earns from the Welding Workshop and also
have combined agricultural land which has not been partitioned.
13. The petitioner/wife has stated that the respondent earns
five-six lacs per year and furnishes income tax return but no such
income tax return has been produced.
14. It is also claimed by the petitioner that the petitioner No. 2
is studying in a school and his expenses cannot be met with
Rs.500/-. Hence, it be enhanced. It is also claimed that for the
treatment of petitioner No. 2 also she requires money.
15. In the case of Shamima Farooqui Vs. Shahid Khan,
(2015) 5 SCC 705, wherein Hon’ble the Apex Court has held that
“The inherent and fundamental principle behind Section 125
Cr.P.C is for amelioration of the financial state of affairs as well
as mental agony and anguish, that a woman suffers when she is
compelled to leave her matrimonial home. The statute commands
that there has to be some acceptable arrangements so that she can
sustain herself. The principle of sustenance gets more heightened
when the children are with her. Be it clarified that sustenance
does not mean and can never allow to mean a mere survival. A
woman, who is constrained to leave with the marital home,
should not be allowed to feel that she has fallen from grace and
move hither and thither arranging for sustenance.”
16. In these circumstances, the petitioner No. 1/wife needs
financial support from the respondent/husband and also the
minor petitioner No. 2.
17. Keeping in view the living standard and the expenses for
the minor, for his education and health, there should be sufficient
provision. That being so, the maintenance is increased from
Rs.1,200/- to Rs.2,000/- for the petitioner No. 1-wife and from
Rs.500/- to Rs.1,000/- for petitioner No. 2- minor child till he
attains the age of majority.
18. This petition is allowed subject to the above modification.
(Sushil Kumar Palo)
Digitally signed by AWINASH
Date: 2017.12.16 12:59:06 +05’30’