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Smt. Sapna Shrivastava vs Shiv Om Shrivastava on 10 January, 2018

1 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

Criminal Revision No.780/2014

………Applicant: Smt. Sapna Shrivastava

Versus

………Respondent: Shiv Om Shrivastava
—————————————————————————————-
None for the applicant.
Mr. S.S. Tomar, learned counsel for the respondent.
—————————————————————————————-
Date of hearing : 04/01/2018
Date of Order : 10/01/2018
Whether approved for reporting : No
Law laid down:

Significant paragraphs:
ORDER

(10/01/2018)
Per Justice G.S. Ahluwalia,

This Criminal Revision under Sections 397, 401 of Cr.P.C.

has been filed against the order dated 6/9/2014 passed by the

Principal Judge, Family Court, Guna in M.Cr.C. No.83/2014, by

which the application filed by the applicant under Section 125 of

Cr.P.C. has been dismissed.

The necessary facts for the disposal of the present

application in short are that the applicant filed an application under
2 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

Section 125 of Cr.P.C. on the ground that she is the legally

wedded wife of the respondent having married to him on

13/4/2012 as per Hindu rites and rituals. Immediately after the

marriage the respondent started harassing the applicant because

of non-fulfillment of their demand of dowry. The respondent and

his family members started passing taunts and harassing the

applicant. Under compulsion and by beating the applicant, they

also obtained signatures of the applicant on various documents

and stamp papers. Whenever the applicant requested the

respondent to allow her to go to her parents house, she was not

allowed by the respondent. When the brother and the uncle of the

applicant had come to take her with them, then the respondent

had misbehaved with them and refused to send the applicant with

them. With great difficulties, after obtaining the signatures of the

applicant on some written documents and stamp papers as well

as the signatures of her brother and uncle the applicant was

allowed to go back to her parents’ home. The applicant is an

unemployed lady and has no source of income and is unable to

maintain herself, whereas the respondent belongs to a high class

society. The respondent is having private house and irrigated

lands. He is a practicing lawyer and his monthly income as a

lawyer is around Rs.20,000/- per month. The total income of the

respondent is around Rs.8-10 lacs per year and, therefore, a

prayer was made for grant of Rs.20,000/- per month by way of
3 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

maintenance.

The respondent filed his reply and denied the allegations. It

is mentioned that on 25/6/2012 the respondent was out of station

and when he came back, then he come to know that the applicant

has gone to her parents’ house on the pretext that her father is not

keeping well. The respondent went to her parents’ house on

8/7/2012 for taking her back, but she refused to come back. The

allegations of harassment or ill-treatment were denied. The

allegations of obtaining signatures on the stamp papers or some

written documents were also denied. It was mentioned that the

respondent is ready and willing to keep the applicant with him and

accordingly, he has also filed an application under Section 9 of the

Hindu Marriage Act. It was further stated that the respondent is

seriously ill for the last about one year and, therefore, he is not

able to practice as a lawyer.

It appears that the trial court by order dated 19/2/2013 had

directed the respondent to pay Rs.2,500/- per month by way of

maintenance. On 6/6/2014 the counsel for the respondent

pleaded no instruction and since the respondent was also not

present, therefore, he was proceeded ex parte. The evidence of

the applicant and her witnesses were recorded and the case was

fixed for final arguments. On 7/6/2014 an application was filed by

the respondent for setting aside the ex parte proceedings. It was

mentioned that the respondent has undergone an operation of his
4 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

spinal cord and the doctor has advised him bed rest for two

months and accordingly, by order dated 1/7/2014 the application

for setting aside the ex parte proceedings were allowed on

payment of cost of Rs.1,000/- and fixed the case for cross-

examination of the applicant and her witnesses. Thereafter, again

the respondent and his counsel did not appear before the trial

court and also did not deposit the cost as directed by the trial

court by order dated 1/7/2014 and accordingly, the trial court by

order dated 2/9/2014 heard the final arguments and passed the

final order on 6/9/2014 dismissing the application under Section

125 of Cr.P.C.

Challenging the order dated 6/9/2014 passed by the

Principal Judge, Family Court, Gwalior in M.Cr.C. No.83/2014, the

present revision has been filed.

In the memo of revision it has been averred that the trial

court has committed a mistake in dismissing the application.

Merely because the wife is a qualified lady would not ipso facto

dis-entitle her to claim maintenance from her husband because it

is the personal obligation of the husband to maintain his wife. The

conduct of the respondent was ignored by the trial Court because

in the proceedings under Section 9 of Hindu Marriage Act the

moment the applicant appeared in the said proceedings, the

respondent did not appear before the trial Court and got the

proceedings dismissed for want of prosecution.

5 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

The counsel for the respondent had appeared and argued

the matter. The case was heard finally and reserved for delivery of

judgment by order dated 4/1/2018. On 5/1/2018 the counsel for

the respondent has supplied a copy of the written reply. In the

reply it was mentioned that the respondent has also got a notice

published in the newspaper on 30/3/2014 with regard to the

pendency of the proceedings under Section 9 of Hindu Marriage

Act. Because of the injury sustained by him on his spinal cord, he

is unable to walk. He has no source of income. The respondent

has no cases to appear and has no standing in the Bar. He has no

independent source of income and he is undergoing the

treatment. Some documents have also been filed along with the

reply. The documents show that the respondent had undergone

some treatment which is reproduced below:-

“Screening whole spine (sagittal T2WI)
shows mild posterior bulging of C4-C5, C5-C6
C6-C7 intervertebral discs, indenting the anterior
thecal sac. Linear thin intramedullary hyperintense
signal is seen involving dorsal spinal cord
extending from D6 to D9 levels, suggestive of
prominent central spinal canal (about 1.5 mm
diameter).

OPINION: The MR findings reveal;s:

* Posterior protrusion of L3-L4
intervertebral disc, causing marked canal stenosis
and compression of bilateral traversing L4 nerve
roots with narrowing of neural foramina, abutting
bilateral traversing L3 nerve roots.

* Diffuse posterior bulging of L2-L3
intervertebral disc, causing canal stenosis and
compression of bilateral traversing L3 nerve roots.

* Diffuse posterior bulging of L5-S1
intervertebral disc, indenting anterior thecal sac
with narrowing of neural foramina, compressing
6 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

bilateral traversing L5 nerve roots.”

Heard the learned counsel for the respondent and perused

the record.

The trial Court has rejected the application filed by the

applicant under Section 125 of Cr.P.C. on various grounds

including that prior to marriage the applicant was working as a

guest faculty and after engagement under the pressure of the

respondent she has left the job. Since the applicant is a literate

lady and can obtain a job and nothing has been mentioned either

in the application or in her evidence that she has ever tried to

obtain any job and, therefore, she cannot be allowed to sit idle in

the house and claim maintenance from her husband. It is further

mentioned that the respondent has mentioned that he is not well

for the last one year and, therefore, he is not able to practice as

an Advocate and some documents have also been filed and he

has also mentioned in his reply that he is still ready and willing to

keep the applicant with him. It was also mentioned that since the

respondent has filed an application under Section 9 of the Hindu

Marriage Act, therefore, it is clear that in fact it is the applicant

who has left her matrimonial house without any reasonable reason

and accordingly, the application was dismissed.

So far as the question of entitlement of the applicant to

receive the maintenance amount is concerned, she has

specifically stated in her evidence that after the marriage, the
7 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

respondent and his family members started passing taunts and

the respondent also started beating her on the issue that sufficient

dowry has not been given. She was forced to sign several

documents and stamp papers. Rajendra Shrivastava (PW-2) has

stated that the applicant is his niece. As the financial condition of

the father of the applicant was not good, therefore, the marriage

expenses were borne by all the brothers. He also stated that when

he and the brother of the applicant went to the matrimonial house

of the applicant to take her back, then the respondent had

misbehaved with him and with great difficulties after obtaining the

signatures on several papers the applicant was allowed to

accompany this witness. As already pointed out that the

respondent was proceeded ex parte and, therefore, he has not

cross-examined the applicant. The ex parte proceedings were set

aside on payment of cost of Rs.1,000/- and the respondent did not

avail that opportunity and even did not deposit the cost and did

not appear for cross-examining the applicant and her witnesses.

Under these circumstances, the Court was left with no other

option but to proceed ex parte against the respondent as the

respondent has neither cross-examined the applicant and her

witnesses nor lead any evidence in his support, therefore, the

reply filed by the respondent cannot be taken note of because

there is nothing on record to show that the respondent was ever

ready and willing to keep the applicant with him.

8 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

So far as filing of an application under Section 9 of the

Hindu Marriage Act is concerned, it is clear that the respondent is

an Advocate by profession. The application under Section 125 of

Cr.P.C. was filed on 3/10/2012, whereas the application under

Section 9 of the Hindu Marriage Act was filed subsequent thereto.

On 29/4/2013 the counsel for the respondent pleaded no

instruction in the proceedings under Section 9 of the Hindu

Marriage Act, therefore, the said case was dismissed in default.

Another application under Section 9 of the Hindu Marriage Act

was filed by the respondent on 24/6/2013. Thus, it is clear that the

sole intention of filing the proceedings under Section 9 of the

Hindu Marriage Act was to keep those proceedings pending in

order to show willingness of the respondent to keep the applicant

with him. In the written reply, which has been filed by the

respondent on 5/1/2018, it is mentioned that the respondent is

facing trial under Sections 498-A, 506 of IPC as well as under the

Protection of Women from Domestic Violence Act. In the reply

also it is nowhere mentioned that as to what has ultimately

transpired in the proceedings under Section 9 of the Hindu

Marriage Act. Thus, it is not known that whether the application

filed by the respondent under Section 9 of the Hindu Marriage Act

is still pending or it has been decided. Further, the respondent has

taken a stand that he had suffered some injury on his spinal cord

and, therefore, he is unable to even walk. Alongwith the written
9 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

reply, which has been filed on 5/1/2018, the applicant had merely

filed the MRI report dated 11/2/2014 and a discharge summary

dated 16/2/2014. No other document of his treatment has been

filed by the respondent. Thus, it is not clear that after his

discharge from the hospital on 16/2/2014 whether the respondent

is still undergoing any treatment or not. Since no other document

has been filed by the respondent even after the case was finally

heard on 4/1/2018, it appears that the respondent is not

undergoing any treatment after 16/2/2014, otherwise he would

have certainly filed the prescription or any other document to show

that he is still undergoing the treatment and is unable to perform

the work of daily need. He has also not filed any document from

the Bar Association to show that he is not practicing as a lawyer

after sustaining injury on his spinal cord. There is no document to

show that he has ever got the licence suspended from the Bar

Counsel of Madhya Pradesh. Thus, it is clear that it is incorrect to

say that the respondent is unable to perform the work of his daily

routine and there is also nothing on record to show that he is not

doing his normal professional work as an Advocate. Further, from

the written reply, it is not clarified that when if he is not earning

anything, then how he is surviving and who is bearing his

expenses? Thus, this Court is of the view that it is incorrect to say

that the respondent is not able to work of his daily routine or he is

not practicing as an Advocate.

10 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

So far as the findings given by the court below that since the

applicant is an literate lady and she was working as a guest

faculty prior to her engagement, therefore, she has to work for her

survival and she cannot claim maintenance from her husband is

concerned, the said observation does not appear to be correct.

Merely because the wife can earn something for her survival

would not be sufficient to refuse maintenance. It is the personal

obligation of the husband to maintain his wife. Once the

respondent himself had forced the applicant to leave the job of

guest faculty, then he cannot compel the applicant to work for her

survival after her ouster from her matrimonial house. As the

allegations of harassment have not been denied by the

respondent by leading evidence, even in the written reply it has

been admitted by the respondent that he is facing trial under

Section 498-A of IPC, this Court is of the view that the applicant

had a reasonable reason for residing separately from the

respondent and accordingly, she is entitled for maintenance.

So far as the quantum of maintenance is concerned, as this

Court has already held that the respondent is working as an

Advocate and he has failed to prove that because of certain

medical complications, he is still unable to perform the work of his

daily routine and he has also failed to prove that he is not

practicing as a lawyer.

Thus, considering the price index, cost of the articles of daily
11 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

needs, inflation rate and the status of the parties, this Court is of

the view that the applicant is entitled for the maintenance @

Rs.3000/- per month. The maintenance amount shall be payable

from 6/9/2014, i.e. the date of the order passed by the Court

below.

Consequently, the order dated 6/9/2014 passed by the

Principal Judge, Family Court, Guna in M.Cr.C. No.83/2014 is

hereby set aside.

Accordingly the revision is hereby allowed. No order as to

costs.

(G.S. Ahluwalia)
Judge
10/01/2018
Arun*

Digitally signed by ARUN KUMAR MISHRA
Date: 2018.01.10 17:53:20 +05’30’
12 Criminal Revision No.780/2014
[Smt. Sapna Shrivastava Vs. Shiv Om Shrivastava]

HIGH COURT OF MADHYA PRADESH, JABALPUR,
BENCH AT GWALIOR

Criminal Revision No.780/2014

………Applicant: Smt. Sapna Shrivastava

Versus

………Respondent: Shiv Om Shrivastava

ORDER post for 10/01/2018

(G.S. Ahluwalia)
Judge
09/01/2018

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