1

Serial number

List of Judgments on 125 Cr.P.C Page Number

1. MUMBAI HIGH COURT : Dated 4 Feb 2005

Maintenance not granted as it is proved that wife wants to reside separately.

2-4

2. MUMBAI HIGH COURT : Dated Apr 2008.

Maintenance not granted as it is proved no reason to leave husbands.

5-7

3. MUMBAI HIGH COURT: Dated 22 February, 2008

Perjury in 125 crPc

8-10

4. DELHI COURT : METROPOLITAN MAGISTRATE, NEW DELHI

Vexatious petition, maintenance, relief is declined

11-13

5. UTTARANCHAL HIGH COURT : Dated25 October 2010

No Maintenance u/s125Crpc for working Women

14

6. UTTARANCHAL HIGH COURT : Dated 18November,2009

No Maintenance u/s Crpc 125 if wife deserts husband

15-16

7. DELHI HIGH COURT: Dated 10 September 2008

No maintenance to Capable wife

17-18

8. DISTRICT COURT , SAKET, DELHI : Dated 18 Nov 2010

Employable wife not entitled to maintenance.

19

9. UTTARANCHAL HIGH COURT : Dated 17 March, 2011

HC Quash Maintenance

20

10. Mumbai Family Court: Qualified wife can ’t sit idle and claim maintenance: Mumbai family

court 21-25

11. Mumbai High Court: 1st July 2010, no evidence no maintenance. 26-31

12. MP HC denies maintenance to wife on her CrPC 125 appeal 32-34

13. SC Judgment, No maintenance to wife if she failed to prove allegations. 35-48

14. SC Judgment , No maintenance to wife Interim or Final if she lies. , 2009 49

15. SC Judgment Wife is not entitled to maintenance who has deserted her husband, , March 2000.

50-53

16. SC Judgment , Wife must prove that she is unable to maintain herself in addition to

the fact that her husband has sufficient means to maintain her and that he has

neglected to maintain her., Oct 2014

54-56

2

MUMBAI HIGH COURT : Dated 4 Feb 2005

Maintenance not granted as it is proved that wife wants to reside separately.

Mrs. Meena Dinesh Parmar vs Shri Dinesh Hastimal Parmar on 4/2/2005 JUDGMENT R.S. Mohite, J. 1. This

appeal has been filed by the appellant Mrs. Meena Dinesh Parmar (hereinafter referred to as "wife")

against the respondent Dinesh Hastimal Parmar (hereinafter referred to as "husband") seeking to quash

and set aside the Judgment and order passed by the Judge, Family Court, Pune on 26.2.2001 In Petition

No. A−354 of 2000 and Petition No. E/810/1998. Petition No. A/354/2000 is a petition filed by the husband

for grant of divorce on the ground of cruelty and desertion under Section 13(1)(ia) and (ib) of the Hindu

Marriage Act, 1955. The Petition No. E−810/1998 was filed by the wife claiming maintenance under

Section 125 of the Code of Criminal Procedure, 1973. By the impugned Judgment and order the Judge,

Family Court granted dissolution of marriage by decree of divorce on both the grounds and granted Rs.

500/− per month as maintenance to a son Bhushan who was born out of the marriage, while rejecting the

claim of the wife for grant of maintenance. 2. The case of the husband as made out in his petition filed in

the Family Court was as under: a) That, both the parties belonging to Hindu community had entered into

an arranged marriage on 24.2.1995. The marriage was performed as per the Hindu Vedic rites. At the time

of marriage the husband was a bachelor and the wife was a spinster. b) After the marriage the newly

wedded couple started residing in a family residence of the husband at Bhandup. A few days after the

marriage the wife started picking up quarrels with the husband and other family members on trifle

matters. She started insisting for separate accommodation. According to the husband even before the

marriage, he had asked his wife as to whether she was ready to stay in a joint family and she had agreed

to do so. The husband reminded her of this consent given by her but the wife continued to insist that they

should move to a separate accommodation. The husband move to a separate accommodation. The

husband tried to persuade her not to be adamant but the wife respondent by denying him physical

contact, thus, causing him mental and physical torture. The husband further found that his wife was not

carrying out household duties. She used to sit in a corner in the room and was not helping other family

members in carrying out other household duties. c) That the parents of the wife used to reside at Yogita

Building, Daulat Nagar, Borivali (E). The wife used to frequent her parents house. She had a maternal uncle

staying at Pune. This maternal uncle was a divorcee and the petitioner’s wife used to visit her maternal

uncle also. The husband was required to go and search for her and he used to find her at her parents’

home. d) That, on 15.5.1996, the husband sent his wife to her parents’ house at Borivali for delivery as

she was then seven months pregnant. However, to the dismay of the husband and his family, his wife

went to the house of her maternal uncle at Pune for delivery instead of staying at her parents house at

Borivali. She went to the house of her maternal uncle without informing the husband. Inspite of such

action by his wife, upon master Bhushan being born at Pune, the husband and his family members had

gone to see the newly born baby at Pune. At Pune, the husband asked the wife to return with him to the

matrimonial home at Bhandup but the wife refused to do so. Her maternal uncle Babulal Dhoke also

refused to send her to Mumbai alongwith the husband. Quarrel took place between the wife and her

maternal uncle on one hand and the husband and his family members on the other and the wife clearly

told her husband that she will never return to her matrimonial home and she will live with her maternal

uncle at Pune. She also told the husband that she wanted a divorce from him. Indian Kanoon −

http://indiankanoon.org/doc/1401220/ e) Since the husband found that his wife was completely adamant

about having a separate accommodation, in the month of April, 1997, in order to save his matrimonial

life, he purchased a separate premises. Thereafter, husband and his family members went to Pune on

several dates to persuade the wife to return but she refused to do so. On 3 to 4 occasions maternal uncle

even assaulted the husband and tried to drive him out of the house. f) On the occasion of the first birth

day of the child,master Bhushan, husband had gone to Pune with some sweets, clothes and presents.

However, the wife and her maternal uncle refused to accept the presents and threw the same towards

the husband. Husband then collected the same and kept them in a corner of the room. However, the wife

sent back sweets, clothes and presents to the husband by courier on the very next day. g) On 26.9.1997

the husband filed a petition in the Family Court at Pune for restitution of Conjugal rights. h) As a counter

move to the said petition, wife filed police complaint against the husband and his family members at Pune

(Ramoshi Gate) Police Station and the husband and his family members were required to go to the police

station at least thee times and due to the harassment caused to them and likelihood of harassment they

also applied for anticipatory bail which was granted to the husband and his family members by the court.

i) On 1.6.1998 wife then filed a maintenance application in the Family Court at Pune. In her application,

she contended that due to harassment caused by her husband and his family members she had to leave

for her parental home when she was pregnant. But as the harassment continued, her parents sent her to

3

the house of her maternal uncle at Pune. Inspite of her delivery on 29.7.1996 she continued to be

neglected by her husband. That, because of continued harassment and the sending of a false notice by

her husband she had to file criminal case in Khadki Police Station at Pune. She claimed maintenance at

the rate of Rs. 500/− p.m. for herself and Rs. 500/− for her son. She also filed Civil Misc. Application in the

High Court of Mumbai for transfer of the husband’s petition for restitution of conjugal rights. Seeing that

there was no hope of her return, the husband withdrew his petition for restitution of conjugal rights by

filing an application dated 5.11.1998 in the family Court at Bandra. The wife also filed a private complaint

under Section 498A of the Indian Penal Code at Pune Court. As a result of these proceedings it has become

clear that his wife was not interested in living with him. j) In the circumstances, on 10.11.1998, the

husband filed a petition for grant of divorce on the ground of desertion and cruelty. 3. On 8.10.2000, the

wife filed her written statement. In the written statement she denied the allegations made by the

husband. She also came out with a positive case that her parents had given 33 tolas of gold ornaments

and 4−K.G. of silver ornaments to her on the demand made by her husband. That her parents had spent

four to five lacs at the time of the marriage. That, after the marriage the husband and his family members

had asked money from time to time from her parents and therefore, her parents were constrained to sell

their flat for fulfilling the demand of her husband and her family members. She was harassed and

ill−treated by the petitioner and his family members. Her husband tired to compel her to give a divorce in

writing on stamp paper. Her parents were not in a position to fulfil such exorbitant and continuous

demands because they were not financially sound. That, she was never provided with medical aid during

her pregnancy and therefore, she became weak. That, as a result of such harassment she had to return to

her parents house at Borivali. Since her husband and his family members continued to harass her, her

parents sent her to Pune for her safety. At Pune she delivered her child and since she was very weak she

was admitted in Meera Hospital where she took treatment for 2.1/2 months. That, her Indian Kanoon −

http://indiankanoon.org/doc/1401220/ husband neither performed his duty as her husband or as father

of the child nor had he visited her after her delivery. That, her husband was making false allegations

against her for adultery. That, her maternal uncle was a respectable person in society and was just like

her father to her. He had brought up her just like a daughter. That, these allegations made by her husband

against her and her maternal uncle amounted to cruelty to her and her maternal uncle. She denied that

she had made any demand for a separate residence and denied that she had caused any mental and

physical torture by denying physical relations to her husband. 4. At the trial the husband examined himself

as P.W.No. 1, his brother Dr. Naresh Parmar as P.W.2 and one Kantilal Ranka who claims to be the

employer of the husband as P.W.3. The wife examined herself as R.W.1, her mother Bhavaribai Surana as

R.W.2, her other uncle Devraj Dhoka as R.W.3 Both the sides produced documentary evidence. Upon

considering all the evidence on record, the Family Court, Pune passed the impugned judgment and order

which is the subject matter of challenge in this appeal. It may be stated here that since no stay to the

decree of divorce was granted pending this appeal, the husband married again and has by now two

children from his second marriage. 5. We have heard both the sides exhaustively. We have also perused

the entire evidence on record. We made serious attempts to see that the parties to be brought together

but our efforts have failed. It is the admitted position before us that the parties have been staying

separately since 15.5.1996 i.e. for a period of more than 6 years and 8 months. Since all attempts of

reconciliation failed, we have looked into the evidence in order to decide the matter on merits. We find

from the evidence of the husband that the main reason given by him as to why his wife was unhappy was

that she was seeking a separate accommodation and desired to stay away from the joint family. He has

stated that his wife denied physical relations with him and caused him physical and mental torture.

That,after she left her matrimonial home on 15.5.1996, though she initially went to her parental house at

Borivali within two days he came to know that she had gone to her maternal uncle’s house at Pune. He

deposed that he had gone to the house of her maternal uncle and had been abused by him. His wife had

informed him that she wanted to stay at Pune. That, in April, 1997 he had made arrangement for a

separate residence at Bhandup and had intimated about it to the parents of his wife but inspite of this

she did not return. We have noted that the wife took the contention that she was willing to stay in a joint

family. If this be so, then one of the main reason for acrimony between the parties would not exist and

there was no reason for her not to return to her husband. We find that she has contended that she was

harassed and ill−treated by the petitioner and his family members. Her contentions in this regard are

vague. There is no date mentioned in respect of any particular incident of harassment. So also particulars

of harassments are also not given. She had stated that she was never provided with any medical aid during

her pregnancy. Apart from her bare statement, there is nothing on record to substantiate this contention.

It is noted that she had gone to her parents place at Borivali for delivery however, within two days she

left for her uncle’s place at Pune. In the police enquiry her own father had given a statement that his

consent and permission was not taken for leaving his house at Borivali. We find no justification in the

4

contention of the wife for staying at Pune with her maternal uncle, even though her husband had

purchased a separate place for their exclusive residence. Such an act on her part of staying at Pune

alongwith her newly born son does amount to both cruelty as well as desertion and no fault can be found

in the impugned judgment and order granting divorce on the ground of cruelty and desertion. 6. So far as

question of maintenance is concerned, in view of our aforesaid finding, maintenance cannot be granted

to the wife. In so far as the child is concerned, we find that an amount of Rs. 500/− which is awarded is

too meagre looking to the present requirements of a growing child. The evidence indicates that the

husband had sufficient money to purchase his own flat. He cannot be said to be a person of no means. No

doubt, he contended that he had borrowed Indian Kanoon − http://indiankanoon.org/doc/1401220/

monies from his friends to purchase the new flat but he candidly admitted that he had not taken any such

contention about borrowing of monies from his friends in his petition nor had he led any evidence in this

regard. Taking an over all view of the matter, we feel that ends of justice will be met if an amount of Rs.

3000/− per month is granted as maintenance to the child. The husband will have an option of making

lumpsum payment of Rs. 5,00,000/− towards the maintenance of his son and if he makes such lumpsum

payment in full, then his liability to pay maintenance at the rate of Rs. 3000/− per month will cease from

the date of full payment. He will also have an option to make a lumpsum payment of Rs. 2,50,000/− at the

first instance and if he does so then the maintenance payable to the son will stand reduced to Rs. 1500/−

per month from the date of such payment. The maintenance amount/amount in lieu of maintenance as

aforesaid would be payable to the son till the son attains the age of majority. In the circumstances, the

appeal is partly allowed with costs in the aforesaid terms.

5

MUMBAI HIGH COURT : Dated Apr 2008.

Maintenance not granted as it is proved no reason to leave husbands.

Bench: V Kingaonkar Sanjay Sudhakar Bhosale vs Khristina W/O Sanjay Bhosale on 8/4/2008 JUDGMENT

V.R. Kingaonkar, J. 1. By this revision petition, petitioner seeks immunity from liability to pay maintenance

allowance as per Judgment rendered in Criminal Revision Petition No. 60 of 2000, by learned Additional

Sessions Judge, Shrirampur, to respondent. He challenges the said Judgment reversing order of dismissal

of the respondents application for maintenance passed by learned Judicial Magistrate (First Class),

Shrirampur. 2. It would be useful to first note the admitted facts. The spouses belong to Christian

community. Their marriage was performed on 14.5.1998 in accordance with tenets of Christian religion.

The petitioner is employed as Wardboy in Yerwada Mental Hospital, at Pune. He resides in one of the

Government quarters, out of nine such quarters, which are in one row, situated at back side of the mental

hospital. He was a divorcee when he performed marriage with the respondent. She went to reside with

him after the marriage. His parents and two brothers reside with him in the same residential quarter. The

marriage was shortlived. The spouses are incompatible. 3. The respondent (wife) filed application under

Section 125 of the Cr.P.C. for separate maintenance allowance. She asserted that for about six months,

she was somehow treated alright in the matrimonial home. Thereafter, the husband started mental and

physical harassment to her at instigation of his parents and brothers. Her in−laws used to express

dissatisfaction regarding gifts given in the marriage. They used to abuse her. The husband (petitioner)

used to beat her in drunken condition. He used to make unlawful demand of gold locket weighing 15 gms.,

a T.V. set and a mixer, which she was asked to bring from the parents. Her parents attempted to convince

and plead with her husband. Still, however, he and his relatives continued the unlawful demand, which

her parents were unable to meet out. He used to suspect her fedility. She apprehended danger to her life

in the matrimonial home. He mercilessly beaten up her on 21.2.1999 and drove her out of the matrimonial

home. She lodged a complaint at the Police Station. She is unable to maintain herself. The husband

(petitioner) has got sufficient means to provide separate maintenance. Consequently, she demanded

separate maintenance allowance at rate of Rs. 1,500/− (Rs. One thousand five hundred) from him. 4. By

filing written statement (Exh. 14), the husband (present petitioner) denied truth into all the material

allegations made by the wife. He denied that she was being ill−treated or harassed in the matrimonial

house. He submitted that on 5th October, 1998, maternal uncle of the respondent (wife) visited his house

and pretended that her another maternal uncle, who is inhabitant of Ahmednagar, was seriously ill.

Lateron she went with her brother. She did not return home after 2/3 days as per the assurance and

hence, he visited her parents house on 25th October 1998. They assured him to send her after the "Natal"

festival. Thereafter, they avoided to send her and she refused to accompany him. He was ready and willing

to maintain her. She deserted him without any substantial reason. He denied that she was neglected by

him. He urged, therefore, to dismiss the application. 5. The parties went to the trial before the learned

Judicial Magistrate (F.C.), Shrirampur in the proceedings (Criminal M.A. No. 85 of 1999). The respondent

examined herself in support of her application. The present petitioner also examined himself and adduced

evidence of two neighbours in support of his defence. On appreciation of their evidence, the learned

Magistrate came to the conclusion that the respondent (wife) failed to prove that she was neglected and

refused to be maintained by the husband. The learned Indian Kanoon −

http://indiankanoon.org/doc/694295/ Magistrate held that within a short span of five months of the

marriage, she left his company, probably because she wanted separate residence without domestic chore

in respect of his parents and the brothers. The learned Magistrate held that allegations of matrimonial

cruelty are invented by the respondent (wife) and were unacceptable. In keeping with such findings, her

application was dismissed. 6. Feeling aggrieved, the wife preferred revision application (Cri. Revision

Petition No. 60 of 2000), which was allowed under the impugned order. The revisional Court reversed

findings of the learned Magistrate and came to the conclusion that the version of the wife could not be

discarded in the set of circumstances. The revisional Court awarded maintenance allowance at rate of Rs.

700/−(Rs. Seven hundred) p.m. in her favour from date of the application. The husband impugns Judgment

rendered by the learned Sessions Judge in the revisional jurisdiction whereby the criminal revision petition

No. 60 of 2000 was allowed. 7. Clinching question is as to whether the findings of the learned Judicial

Magistrate could be regarded as perverse, arbitrary and patently erroneous so as to warrant interference

by the learned Sessions Judge in the exercise of revisional jurisdiction. It is well settled that, normally, the

revisional Court will not reappreciate the evidence. The impugned Judgment does not show that the

learned Sessions Judge recorded finding that the appreciation of the evidence, as done by the learned

6

Magistrate suffered from vice of arbitrariness, perversity or capriciousness. 8. In the above background, I

would briefly take survey of the evidence tendered by the parties. PW−1 Khristina (wife) testified that

after six months of the marriage, the husband and his relatives started giving cruel treatment to her on

account of demand of money. This part of her statement is discripant with allegations in the pleadings. In

her application, she alleged that a gold locket, weighing 15 gms, a T.V. set and a mixer were demanded

by the husband from her parents. There is no whisper of any such demand throughout her oral statement

before the learned Magistrate. She stated that on 21st February 1999, the husband beaten up her and

drove her out of the house. She lodged a complaint at the Yerwada Police Station, Pune. Her version shows

that she had written two letters and narrated her plight in the matrimonial home to her father. Her

brother used to visit her matrimonial home. Neither of them entered the witness box nor the letters sent

by her or copy of Police complaint lodged by her, have been placed on record. Her real married sister, by

name, Archana resides in Yerwada locality at Pune. Her maternal uncle resides at Akurdi, Pune. She admits

that she never informed her sister or any other relative about the ill−treatment meted out to her at hands

of the husband and his relatives, except and save to her father. This conduct of the respondent was duly

noticed by the learned Magistrate. She admitted that on 5th October 1998, her brother and maternal

uncle visited the house of her husband to inform that her another maternal uncle, who is inhabitant of

Ahmednagar, was suffering from illness. This admission corroborates contention of the husband that she

was allowed to go to Ahmednagar to meet her ailing maternal uncle. 9. The learned Magistrate also

noticed that the two neighbours, namely, DW−2 Shubhangi and DW−3 Bashid corroborated version of the

husband. The version of DW−1 Sanjay (husband) would show that there was no ill−treatment given to the

wife. He states that on 5th October 1998, brother of the wife and her maternal uncle visited his house

and informed that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from

illness and they requested him to send her with them. His version shows that he allowed them to take her

away after 2/3 days. Thereafter, on 11th October 1998, her brother took her to Ahmednagar. His version

shows that he made attempts to fetch her back but it was invain. The version of DW−Shubhangi reveals

that the petitioner and his wife were never seen quarrelling with each other. Her version reveals that the

respondent (wife) resided with the petitioner only for five months after the Indian Kanoon −

http://indiankanoon.org/doc/694295/ marriage and he is not addicted to any vice. There is only a middle

wall between the residential quarter of the petitioner and DW−Shubhangi. She has no reason to speak lie

nor any tangible material is gathered during her cross−examination. Similarly, DW−3 Bashid deposed that

after five months of the marriage, the wife left house of the petitioner − Sanjay. In other words, the version

of petitioner −Sanjay stands corroborated by the versions of two neighbours. 10. There is solitary and

interested version of PW−Khristina in support of her application for separate maintenance allowance. Her

version gives inconsistent account about so−called unlawful demand. She deviated from her pleadings.

The findings of the learned Magistrate are based on due appreciation of the evidence. The further

development may be noticed. The petitioner filed an application for restitution of conjugal rights in the

Family Court at Pune. His application (P.A. No. 500 of 2002) is allowed by the Family Court on 21st July

2003. So far, the respondent (wife) has not challenged the Judgment of the Family Court. The Family Court

raised a specific issue as follows: Whether the petitioner proves that the respondent without any

reasonable excuse has withdrawn from the society? The learned Judge of the Family Court recorded an

affirmative finding on the said issue. It is manifest, therefore, that not only the learned Judicial Magistrate,

on appreciation of the evidence tendered by the spouses, came to the conclusion that she left his house,

probably under burden of the domestic chores, but the civil Court also found that she is guilty of deserting

him without any reasonable excuse. 11. The impugned Judgment reveals that the learned Sessions Judge

undertook reassessment of the entire evidence though he was supposed to exercise the revisional

jurisdiction. The learned Sessions Judge did not find any particular fault in the process of appreciation of

evidence, as done by the learned Magistrate. The relevant observations of the learned Sessions Judge may

be reproduced as follows: 14. On carefully scrutinising the evidence of the applicant and opponent it will

reveal that the matrimonial life of the applicant was not smoothly going on due to some quarrel and

ultimately, it was resulted into leaving the house of opponent, by the applicant. Observations made by

the lower Court that the applicant had stayed for short period in the house of the opponent and therefore,

there is no possibility of ill−treatment, does not appear to be proper and legal in the circumstances of the

case. When the applicant has positively stated that she was subjected to ill−treatment not only that but

she has lodged complaint in Yerwada Police Station, this will prima−facie give rise that she was ill−treated

and, therefore, she has left the house of the opponent. Provisions of Section 125 of Code of Criminal

Procedure need not require that there must be a strict proof of cruelty. The above observations of the

learned Sessions Judge would indicate that he accepted version of the wife only because she gave positive

statement that she was subjected to ill−treatment and had lodged the complaint at Yerwada Police

Station. As stated before, there is no scintilla of evidence to show that really she had lodged a complaint

7

about the matrimonial cruelty. Nor her so−called positive statement finds support from her pleadings. In

this view of the matter, it is difficult to countenance the findings of the learned Sessions Judge. Her mere

statement could not have been taken as gospel truth as regards neglect and refusal of the husband to

maintain her. It is overlooked by the learned Sessions Judge that within a short span of the marriage, the

wife left his company and no notice was given within a reasonable time by her, seeking restitution of the

conjugal rights. 12. The Apex Court, in Deb Narayan Halder v. Smt. Anushree Halder 2003 (3) B Cr C 286,

held that the appellate Court or revisional Court while setting aside Indian Kanoon −

http://indiankanoon.org/doc/694295/ findings recorded by Court below must notice those findings and

where the findings are of facts, evidence on record must be discussed, which should justify reversal of

findings recorded by the Court below. The Apex Court held that when the maintenance application of the

wife was rejected by the learned Magistrate, holding that she had on her own left the matrimonial home,

the High Court was not justified in reversing such findings recorded by the trial Court and to grant

maintenance to the wife. 13. In view of foregoing discussion, it will have to be said that the findings of the

learned Magistrate should not have been interfered with by the revisional Court and for the reasons,

which are recorded by it. The inferences drawn by the learned Sessions Judge are improper and incorrect.

There is misinterpretation of the evidence by the learned Sessions Judge. Under these circumstances, the

impugned Judgment is unsustainable and liable to be interfered with. 14. In the result, the petition is

allowed. The impugned Judgment is set aside and the Judgment rendered by the learned Magistrate in

Criminal Misc. Application No. 85 of 1999 is restored. The wifes application under Section 125 of the

Cr.P.C. is dismissed. However, the payment of maintenance allowance, if any, during the intervening

period, is not refundable by her. No costs.

8

MUMBAI HIGH COURT: Dated 22 February, 2008

Perjury in 125 crPc

IN THE HIGH COURT OF DELHI AT NEW DELHI 10 CRL.M.C. 1130/2008 & CRL.M.A.4231/2008 JAGDISH

PRASAD ..... Petitioner Through: Mr.R.B. Pandey, Advocate. versus STATE & ORS. ..... Respondents

Through: Mr.Jaideep Malik,APP. Mr. R.P. Kaushik, Advocate for Respondent No.2. CORAM: HON'BLE DR.

JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes

ORDER 23.03.2009 1. This petition under Section 482 of the Code of the Criminal Procedure (CrPC) is

directed against an order dated 22nd February 2008 passed by the learned Additional Sessions Judge (ASJ)

Delhi allowing Crl.A.No.18 of 2005 filed by the Respondent No.2 against an order dated 9 th September

2005 passed by the learned Metropolitan Magistrate (MM) Delhi in an application filed by the Petitioner

herein under Section 340 CrPC. By the said order dated 9th September 2005, the learned MM came to

the prima facie conclusion that Respondent No.2 had committed an offence under Section 193 of the

Indian Penal Code (IPC) and ought to be prosecuted for the same. The learned ASJ has, in the

Crl.M.C.1130/08 Page 1 of 11 impugned order, set aside the order dated 9 th September 2005 on the

ground that the learned MM had not determined if it was expedient in the interests of justice that an

inquiry should be held for ascertaining whether the Respondent No.2 should be prosecuted for the

offence under Section 193 IPC. 2. The brief facts leading to the filing of the present petition are that

Respondent No.2 wife filed an application under Section 125 CrPC seeking maintenance from the

Petitioner husband for herself and the minor female child. In her petition she stated in Para 15 that she

was "not employed anywhere and is unable to maintain herself and her said minor girl Shruti and they

presently are survived on the mercy of parents of the petitioner No.1 (wife) who themselves have limited

resources to maintain the large family." 3. According to the Petitioner in the month of June 2001, the

Respondent No.2 wife had joined Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi as a

`Receptionist' and was receiving salary from the said hospital. On this basis, Petitioner had earlier filed an

application under Section 340 CrPC which, according to Respondent No.2, was dismissed on 16th

September, 2003. Jagdish Prasad vs State & Ors on 22 February, 2008 Indian Kanoon -

http://indiankanoon.org/doc/725714/ 1 4. On 12th February 2004, Respondent No.2 was examined in

chief in the maintenance petition. She stated: "I was not working anywhere after my marriage, I was not

working till today anywhere from the date when I Crl.M.C.1130/08 Page 2 of 11 was kicked out from my

matrimonial home." She was cross examined on 7th April 2004 and was asked whether she was doing any

job during the pendency of the petition. She replied that "since after coming to my parental home, I am

not doing any job. I have one bank account in Co- operative Bank. It is incorrect to suggest that after

coming to my parental home, I have worked with Tirath Ram Shah Charitable Hospital, Rajpur Road,

Delhi." In response to another specific question whether she was holding a bank account at Punjab

National Bank, Civil Lines she stated as under: "It is wrong to suggest that I am holding an account which

is 427791 in the above said bank i.e., PNB" 5. Consequent upon the above replies in cross examination,

the Petitioner filed an application under Section 340 CrPC seeking the prosecution of the Petitioner for

committing perjury punishable under Section 193 CrPC. 6. It appears that a reply was filed to the said

petition by Respondent No.2. Even evidence appears to have been led by examining the officials from

both the Punjab National Bank as well as the Tirath Ram Shah Charitable Hospital. 7. RW-2 D.S. Bandari,

Senior Manager, Punjab National Bank, Civil Lines, Delhi was examined on 28th September 2004. He

confirmed that Crl.M.C.1130/08 Page 3 of 11 an account had been open by Respondent No.2 with the

bank with the addresses "C/o Tirathram Shah Hospital, 2 Battery Lane, Rajpur Road, Delhi -54." He stated:

"On 20.07.01 Smt. Veena Bhatt opened her account in Punjab National Bank, Civil Lines, Delhi. The account

was introduced by Sh.B.Arora, SF account No.11908 with the address C/o Tirathram Shah Hospital, 2

Battery Lain(sic Lane), Rajpur Road, Delhi-54 with a initial amount of Rs.500/-. She was allotted account

No.427791. Statement of the account since opening of the account till today is exhibited as Ex.RW2/A,

Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of account Smt. Veena Bhatt stated her

occupation "service" which has been written in point A over Ex.RW2/D. 8. RW-3 Manoj Nair, AAO, Tirath

Ram Shah Hospital in his examination in chief stated as under:- "The authority letter given by

Dr.A.K.Dubey, Director is Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram Shah

Hospital. She was working as a receptionist on fixed term contract basis. The gross salary of Mrs.Veena

was Rs.3,572/- only. Her employment no. was 1225. I identify Mrs. Veena who is present in the court.

There was break in service for one day. Smt. Veena Bhatt was working as a Jagdish Prasad vs State & Ors

on 22 February, 2008 Indian Kanoon - http://indiankanoon.org/doc/725714/ 2 receptionist and not as a

trainee as per the record. In my hospital no receptionist trainee Crl.M.C.1130/08 Page 4 of 11 are engaged.

9

She has not applied for the renewal of her further contract after 10.06.02. I can submit a copy of the

application form and record of salary if required. The original is before this hon'ble court. Application for

employment form is Ex.RW3/B (four pages) and the copy of salary register for the month of June, 2001 to

June, 2002 are collectively Ex.RW3/C (12 pages)." 9. The cross examination only elicited the following

clarification by Respondent No.2:- "It is correct that Smt. Veena had not worked in the hospital as a

permanent hospital (sic) or on ad hoc basis or on temporary basis she had worked only on contract basis.

10. The learned MM in the order dated 9th September 2005 came to the following conclusion:- "I have

gone through the record of the present application as well as the petition under Section 125 Cr.P.C., which

is pending in the present court. Smt. Veena may have had a genuine cause for having worked as proved

against her in her case and also admitted by her in the present proceedings. Nevertheless her pressing

requirements for income does not exonerate her from the offence of having given false testimony in the

court. I am, therefore, of the opinion that Smt. Crl.M.C.1130/08 Page 5 of 11 Veena has committed an

offence under Section 193 IPC and she ought to be prosecuted for the same." 11. Aggrieved by the above

order, Respondent No.2 filed an appeal in the Court of learned ASJ. Among the grounds urged in the

appeal were that an earlier petition under Section 340 CrPC having been dismissed, a further application

ought not to have been entertained by the learned MM. It was further urged that there was never any

intention on the part of Respondent No.2 to commit any offence and that her only intention was to claim

maintenance as per law. It was sought to be urged that in the recording of the answers to the questions

put to Respondent No.2 in her cross examination there were chances of inadvertent mistakes "unless it is

in the language of the appellant/witness i.e. Hindi/vernacular language .". It was also urged that the

learned MM had, in fact, pronounced a final judgment on the guilt of the Respondent No.2 for the offence

under Section 193 IPC and, therefore, the order dated 9th September 2005 stood vitiated. 12. In the

impugned order dated 22nd February 2008, the learned ASJ has referred to the judgments of the Supreme

Court in Afzal v. State of Haryana and others AIR 1996 SC 2326, Murrari & Company 2002 (2) SCC 367 and

Pritish v. State of Maharashtra and others AIR 2002 SC 236 to hold that it was incumbent on the learned

MM to come to a definite conclusion that it was expedient in the interest of justice that an

Crl.M.C.1130/08 Page 6 of 11 action should be taken against respondent No.2 under Section 193 IPC. The

Jagdish Prasad vs State & Ors on 22 February, 2008 Indian Kanoon - http://indiankanoon.org/doc/725714/

3 learned ASJ proceeded to observe as under:- "Mere recording of a finding to the effect that an offence

punishable under section 193 of the Penal Code was committed would not answer requirement of section

340 of the Code. When primary question was answered in affirmative then secondary and most effective

proposition was to be answered to the effect whether it was expedient in the interest of justice to initiate

an action in the matter. No such step was taken by the Trial Court to see that it was expedient in the

interest of justice to take such action. In such a situation, order impugned is shrouded with illegality. In

cannot be allowed to stand. Consequently, order impugned is set-aside and appeal is granted. Trial Court

record be sent back. File be consigned to Record Room." 13. Learned counsel for the Petitioner makes a

two-fold submission. According to him, the learned ASJ, hearing the criminal appeal had to specifically

direct the complainant to withdraw the complaint and could not have passed any other order. Secondly,

he submits that a reading of the order dated 9th September 2005 passed by the learned MM shows that,

in fact, the learned MM had come to a conclusion about the expediency in the interest of justice for

prosecuting Respondent No.2 thus satisfying the requirement of the law under Section 340 CrPC.

Crl.M.C.1130/08 Page 7 of 11 14. Learned counsel for the Respondent No.2 urged that there was no

illegality in the order of learned ASJ mandating a full-fledged inquiry prior to the formation of opinion that

it was expedient in the interest of justice to prosecute Respondent No.2. He submits that inasmuch as

there was no specific conclusion drawn by the learned MM to that effect, the order dated 9th September

2005 stood vitiated. He also submits that with the learned MM already having concluded on the guilt of

Respondent No.2, nothing really remained as far as the prosecution of Respondent No.2 was concerned.

It would be an empty formality. 15. The submissions of both sides have been heard. As regards the first

contention, a reference may be made to Section 341 CrPC which reads as under:- (1) Any person on whose

application any Court other than a High Court has refused to make a complaint under sub-section (1) or

sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may

appeal to the Court to which such former Court is subordinate within the Jagdish Prasad vs State & Ors on

22 February, 2008 Indian Kanoon - http://indiankanoon.org/doc/725714/ 4 meaning of sub-section (4) of

section 95, and the superior Court may thereupon, after notice to the parties concerned, direct the

withdrawal of the complaint or, as the case may be, making of the complaint which such former Court

might have made under section 340, and if it makes such complaint, the provisions of that section shall

apply accordingly." Crl.M.C.1130/08 Page 8 of 11 16. A plain reading of the above provisions would show

that an appeal can be filed by either a complainant seeking to invoke Section 340 CrPC or by a person

against whom the Court below has invoked the provision. In the instant case, the provision was

10

successfully invoked by the Petitioner before the learned MM and it was Respondent No.2 who filed an

appeal. While accepting her submission, learned ASJ set aside an order dated 9th September 2005. The

effect of this was the withdrawal of a complaint itself. Therefore, there was no illegality committed by

learned ASJ as far as the order that should have been passed under Section 341 CrPC. The first submission

of learned counsel for the Petitioner is accordingly rejected. 17. That brings us to the merits of the case.

The only ground on which the learned ASJ appears to have set aside the order dated 9th September 2005

passed by the learned MM is that a definite opinion was not formed by the learned MM that it was

expedient in the interest of justice to prosecute Respondent No.2 for the offence under Section 193 IPC.

The learned ASJ unfortunately does not appear to have referred to the record of the detailed inquiry

conducted by learned MM. This involved not only considering the reply filed by Respondent No.2 but also

the evidence recorded of RW-2 i.e. the Senior Manager D.S.Bandari of the PNB and RW-3, the official of

the `Tirath Ram Shah Hospital Manoj Nair. In the light of the evidence of these witnesses, the relevant

portion of which have been extracted hereinbefore, there was no question of Crl.M.C.1130/08 Page 9 of

11 learned MM having to hold any further inquiry in order to determine whether Respondent No.2 ought

to be prosecuted or not. 18. In the considered view of this Court, when the learned MM in the order dated

9th September 2005 observed "I am, therefore, of the opinion that Smt. Veena has committed an offence

under Section 193 IPC and she ought to be prosecuted for the same", the requirement of Section 340 CrPC

as explained by the Supreme Court stood satisfied. In other words, the opinion formed by learned MM

was obviously only a tentative or a prima facie one. This is plain from the expression "ought to be

prosecuted". Further, the same expression "ought to be prosecuted" also indicates the formation of an

opinion that it was expedient in the interest of justice that Respondent No.2 should be prosecuted.

Therefore, both the requirements of law as explained by the Supreme Court in relation to Section 340

CrPC stood completely satisfied by the order dated 9th September 2005 passed by the learned MM. This

Court is, therefore, unable to agree with the conclusion reached by learned ASJ to the contrary. 19. The

order dated 22nd February 2008 passed by the learned ASJ is accordingly set aside. The order dated 9th

September 2005 passed by the learned MM and the consequent application presented to the learned

Additional Chief Metropolitan Magistrate for prosecuting Respondent No.2 are revived. The further steps

will proceed in accordance with law. Crl.M.C.1130/08 Page 10 of 11 20. The petition is accordingly allowed

with no order as to costs. The pending application is also disposed of. S. MURALIDHAR, J. MARCH 23, 2009

Jagdish Prasad vs State & Ors on 22 February, 2008 Indian Kanoon - http://indiankanoon.org/doc/725714/

5 ks Crl.M.C.1130/08 Page 11 of 11 Jagdish Prasad vs State & Ors on 22 February, 2008 Indian Kanoon -

http://indiankanoon.org/doc/725714/ 6

11

DELHI COURT : METROPOLITAN MAGISTRATE, NEW DELHI

Vexatious petition, maintenance, relief is declined

IN THE COURT OF MRS. VEENA RANI, METROPOLITAN MAGISTRATE, NEW DELHI CC No:2979/1/2007 P.S.

Dabri Smt. Rekha Gupta W/o Sh. Dinesh Gupta, D/o Sh. Bangali Babu, R/o A-312, Shastri Nagar, Delhi-

110052 ……….Applicant Versus 1. Sh. Dinesh Kumar Gupta (Husband) 2. Sh. Sunil Gupta (Brother in law) 3.

Sh. Narender Gupta (Brother in law) All sons of Sh. Faqir Chand. 4. Smt. Urmila Devi (Mother in law) W/o

Sh. Faqir Chand All R/o C-242/60, Foot Road, Mahavir Enclave Part III, Dabri Mor, Uttam Nagar West New

Delhi ……….Respondents ORDER 1. The present application u/s 12 of the Protection of Women from

Domestic Violence Act, 2005 has been filed on 12th December, 2007 by Mrs. Rekha Gupta against her

husband Dinesh Kumar Gupta and other respondents No:2 to 4. The complainant/applicant has also filed

the copy of FIR and the petition under section 125 Cr.P.C. The Protection of Women from Domestic

Violence Act, 2005 would be referred as the Act, 2005. 2. By way of this petition the following orders has

been sought: a. The protection orders u/s 18 of the Act, 2005; b. The residence orders u/s 19 of the Act,

2005; c. The monetary relief u/s 20 of the Act, 2005; d. The compensation and damages u/s 21 of the Act,

2005; e. Order prohibiting the respondents committing acts of domestic violence and repeating the same

as mentioned above. f. Pass an order under section 21 of the Act and to direct the respondents to pay

compensation/maintenance for the two minor children which are still in the custody of respondents and

the father/respondent no:1 is still in the judicial custody in case U/s 498A/406 IPC in FIR No:405/2007

since 16-11- 2007 and respondents also be directed to handover the minor children to the

complainant/mother immediately for their routine life and for the sake of there future. g. and such interim

order or orders as deemed fit just and proper in the circumstances of the case. 3. It has been averred in

the application that the applicant was married to the respondent no:1 on 14-3-1994. the couple was

blessed with a daughter ‘Ruchi’ on 10-1-1995 and a son ‘Boby’ on 26-8-1999. the respondent no:1 is said

to be in the business of mobile phones in association with the other respondents i.e. R-2 to R-4. The

respondents i.e. R1 to R-4 had been very unkind and brutal to the applicant. The applicant narrates the

incidence dt.11-4-07 in the paragraph no:4 of the application whereby it is averred that the respondents

no:1 to 4 had thrashed the applicant badly and the respondent no:4 i.e. the mother in law actually wanted

to kill the applicant by tightening the duppatta like noose around the applicant’s neck. 4. The application

has been supported by an affidavit of the applicant. 5. All the four respondents appeared on notice sent

to them of the petition and the interim application and filed the reply to the application. All the

respondents R-1 to R-4 have denied the allegations of any incident of the domestic violence. It has been

specifically alleged that there is no cause of action in filing the petition and that by filing the petition the

petitioner is trying to get benefit of her own wrong doings. It is alleged that the applicant and the

respondent no:1 husband had been residing separately for the last twelve years in the house no:C-242/60

at Mahavir Enclave Part III (Delhi) and the rest of the respondents R-2 to R-4 were residing in the rented

accommodation at B-542, Mahavir Enclave Part III (Delhi). It is also averred that the mother in law i.e. R-

4 is the owner of the house no:C-242/60 at Mahavir Enclave Part III (Delhi). In the reply it is also stated

that the applicant-complainant happens to be greedy lady who had earlier on many occasions tried to

influence the respondent no:4 i.e. the mother in law to alienate the dwelling house i.e. house no:C- 242/60

at Mahavir Enclave Part III (Delhi) in the favour of the applicant-complainant. The husband of the

complainant is said to have a monthly salary of only Rs.3,000/- (Rupees Three Thousand). Further it has

been specifically ;stated that the petition is not maintainable against the women respondents in view of

the definition of respondents contained in section 3 clause (q). 6. I have heard the arguments tendered

by the learned counsels of the parties and have perused the record carefully. 7. After the acknowledgment

of domestic violence as a human rights issued by the Vienna Accord of 1994, the Beijing Declaration and

the Platform for Action, the United Nations general assembly also released a report on domestic violence.

This report included many groundbreaking aspects of the issue. In this context, the Domestic Violence Act

in India also becomes critically important in the relevant areas and aspects covered. In the fact of the

findings and ecommendations of the UN general assembly report on violence 4 against women, the

implementation of the Domestic Violence Act (DVA) 2005 becomes crucial in India. The act attempts to

address the concerns of the victims by first of all recognizing the fact that domestic violence is a reality.

Prior to the inaction of the law, the only remedy available for marital violence was section 498 of IPC. 8.

At the out set the maintainability of the petition against the women respondents No:4 i.e. Smt. Urmila

Devi (the mother-in-law) needs to be considered. In this context the definition of the respondents is

reproduced as under: The said definition is thus: The said definition is thus: S.3(q) ”respondent” means

any adult male person who is, or has been, in a domestic relationship with the aggrieved person and

against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife

12

or female living in a relationship in the nature of a marriage may also file a complaint against a relative of

the husband or the male partner: 9. The definition of respondents prohibits manifestly the launching of

proceedings under the protection of the Act, 2005. As a matter of law as envisaged under the Act it is the

women who is the aggrieved person qua the adult male person as defined in S.2)q) of the Act, The

impleading of women member as the respondent in the petition shows the very mala-fide intention of

the petitioner. Hence the petition along with merit dismissal against the R-4 Smt. Urmila Devi ( the

mother-in-law) as being not maintainable. 10. I also want to cite the authority reported as S.R. Batra

Vs.Smt. Taruna Batra, 2006 (13) SCALE 652. The facts of this case were that Trauna Batra and Amit Batra

were married on April 14, 2000. After marriage, Taruna started living with her husband Amit on the second

floor of her mother-in-law’s house at Ashok Vihar in Delhi. Amit Batra filed a divorce petition against his

wife. Taruna Batra filed a First Information Report for cruelty, intimidation and breach of trust against her

in laws, husband and sister-in-law. Taruna shifted to her parent’s house. Later, when she tried to enter

the house she found that the main entrance was locked. She filed a suit for mandatory injunction to enter

the premises. According to the husband’s family, Taruna Batra forcibly broke open the lock of her mother-

in-law’s house and terrorised them. The family also stated that the husband Amit had moved out of Ashok

Vihar to his own flat at Mohan Nagar. The trial court held that Taruna was in possession of the second

floor of the house and granted an injunction restraining the husband’s family from interfering with her

possession. In appeal, the learned court held that Taruna was not living on the second floor of the

premises. The learned court also held that Amit Batra was not living in the Ashok Vihar premises, and that

the ‘matrimonial home’ could not be said to be a place where only the wife was residing. The application

seeking that the husband’s family be restrained from interfering with the wife’s possession was dismissed

by the court. Taruna Batra subsequently filed a petition in the Hon’ble Delhi High Court. 11. The Hon’ble

Delhi High Court took the view that mere change of residence by the husband would not shift the

matrimonial home, particularly when he had filed a divorce petition against his wife. Therefore, the

shifting of the husband Amit Batra to Mohan Nagar in Ghaziabad would not make that house the

matrimonial home of the wife Taruna. The Hon’ble Delhi High Court held that Taruna Batra was entitled

to continue to reside on the second floor of the Ashok Vihar premises, as that was her matrimonial home.

Amit and his family appealed to the apex court. 12. The Hon’ble Supreme Court observed that in England

the rights of the spouse to the matrimonial home were governed by the Matrimonial Homes Act, 1967.

But no such rights exist in India. Illustrating the mindset that the court brought to bear on interpreting a

law that deals with the rights of a wife in the matrimonial home, the judgment declares that, in any case,

the rights which may be available under any law could only be against the husband and not against the

mother in law or father in law. The court held that the Ashok Vihar house belonged to the mother in law

and not to be husband. Therefore, Taruna Batra could not claim any right to live in the premises. The

judgment observes that Taruna Batra was not residing in the house and so could not claim an injunction

restraining the husband’s family from dispossessing her of the premises. Therefore, the court goes on to

interpret the definition of ‘shared household’ in the Domestic Violence Act and the rights of a woman in

the household. The Domestic Violence Act clearly defines ‘shared household’ in Section 2(s) as a

household where the aggrieved person ”lives or at any stage has lived in a domestic relationship either

singly or along with the respondent”. The definition covers household owned or tenanted, or joint family

property, irrespective of whether the respondent or the aggrieved person has a right, title or interest in

the shared household. The submission made on behalf of Taruna Batra was that the definition of ‘shared

household’ in the Domestic Violence Act clearly included a household where the aggrieved person lives

or at any stage had lived in a domestic relationship. As Taruna Batra had admittedly lived in the premises

at Ashok Vihar, it clearly constituted her ‘shared household’. The Hon’ble Supreme Court, rejected the

submission that the second floor premises of Ashok Vihar were the shared household of the wife Taruna

Batra. The court also rejected Taruna Batra’s claim for alternative accommodation under the Domestic

Violence Act. The judgment holds that the property belonged to the husband’s mother and could not be

claimed by the wife as ‘shared household’. 13. I am also basing my decision on the above-discussed

reported as S.R. Batra Vs. Smt. Taruna Batra, 2006 (13) SCALE 652. Therefore the prayer No:2 of the

complainant-applicant can not be granted. 14. There is another significant aspect of the present

application. The applicant has also filed an FIR bearing No:405 of 2007 on the allegation of the incidence

averred by the applicant in the present application in the paragraph No:4. Thus I see that the present

applicant has been vexatious. The husband i.e. R-1 as per the averments is in Jail on account of the FIR

No:405/2007 under section 498-A/406/34 IPC. There also happens to be another litigation pursued by the

applicant and which is her petition under section 125 Cr.P.C. Through that petition the present applicant-

complainant had sought monetary maintenance. Considering that the applicant has merely tried to use

the previous FIR in order to ask for the relief through the present complaint/application I find the applicant

has been vexatious in her litigations. 15. The applicant also sought custody of his two children Ms. Ruchi

13

and Master Bobby who are in the custody of their father. On 28-6-2008, I personally enquired from the

children as to with whom they want to live. Ms. Ruchi is aged about 10-12 years of age and Master Bobby

is of 7-8 years old. Both children desired to live with their father. In this circumstance the desire/wish of

children is of paramount consideration, therefore, the court can not compel, the children to live with their

mother against their wishes. Hence this relief is declined. Moreover, the applicant is also getting the

maintenance u/s 125 Cr.P.C. Hence there is further no need to award maintenance to the applicant in the

present case. As far as other relief are concerned, they are vexatious, therefore, declined. However, this

observation will not cause any prejudice to the rights of the parties in any other case or proceedings.

Announced in the open court. (VEENA RANI) Dt.28-7-2008 MM:N.Delhi Dt. 28-7-2008

14

UTTARANCHAL HIGH COURT: Dated25 October 2010

No Maintenance u/s125Crpc for working Women

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No. 88 of 2002 Vikas Jain . .

Revisionist Versus Smt. Deepali @ Ayushi Jain Respondent October 25, 2010 Mr. Arvind Vashistha,

Advocate for the revisionist. Mr. Tapan Singh, Advocate holding brief of Mr. Lok Pal Singh, Advocate for

the respondent. HON'BLE DHARAM VEER, J. This criminal revision has been preferred against the

judgment and order dated 4.9.2002 passed by the Principal Judge, Family Court, Haridwar in Case No.

66/2002, Deepali Jain v. Vikas Jain u/s 125 CrPC, whereby the Principal Judge, Family Court has allowed

the said application of wife/respondent and awarded the consolidated maintenance of Rs. 5000/- per

month for the respondent and her minor son with effect from the date of making the said maintenance

application i.e. 22.5.2000. 2. Briefly stated facts of the case are that the respondent moved an application

with the averments that she was married to the revisionist as per Hindu rites on 21.11.1996 and her

parents had given dowry according to their status. A son born out of the said wedlock on 26.2.1998.

Revisionist and her in-laws were not happy with the dowry given in the marriage and they demanded Rs.

50,000/- as well as some other articles like TV, fridge, scooter etc. They started harassing the respondent

for dowry. She was also abused and beaten. Ultimately, the respondent was ousted from the house of her

in-laws on 5.3.2000. They also did not return her stridhan. Subsequently she suffered paralytic attack and

became handicapped. With these averments, she moved the aforesaid application claiming maintenance

of Rs. 5000/- per month for herself and her minor son by stating that she 2 is handicapped and she is

unable to maintain herself and her minor son, whereas the revisionist earns Rs. 20,000/- per month

through marketing business and he has got no other responsibility. 3. After hearing learned Counsel for

the parties and after appreciating the evidence on record and considering the facts and circumstances of

the case, learned Principal Judge, Family Court allowed the aforesaid application of the respondent and

directed the revisionist to pay the maintenance of Rs. 5000/- per month for the respondent and her minor

son with effect from the date of making the said maintenance application. Being aggrieved, the revisionist

has preferred the present revision before this Court. 4. I have heard learned Counsel for the parties and

perused the papers available on record. 5. Perusal of impugned judgment and order dated 4.9.2002

reveals that the court below has considered all the circumstances in the entirety. Moreover, it is not the

case of the revisionist that respondent is having some other source of income from which she can maintain

herself and her minor son. Furthermore, it is undisputed that the respondent suffered paralytic attack and

became handicapped, whereas the revisionist was engaged in marketing business at that time and had

got sufficient means to maintain his wife and minor son. In these circumstances, revisionist cannot shirk

himself from the responsibility of maintaining his wife. Vikas Jain vs Smt. Deepali @ Ayushi Jain on 25

October, 2010 Indian Kanoon - http://indiankanoon.org/doc/1439558/ 1 6. But learned Counsel for the

revisionist argued that subsequently the respondent has been given appointed as a teacher in Govt. school

vide order dated 24.12.2005 and 3 now she has got enough income to maintain herself and her minor

son. Learned Counsel for the respondent also admitted that now the respondent is in regular Govt.

service. Copy of the appointment order dated 24.12.2005 and salary certificate of the respondent have

also been produced on record. Learned Counsel for the revisionist also argued that now the revisionist

has left his previous job and he is unable to pay the monthly maintenance of Rs. 5000/- to the respondent.

7. Having heard the submissions of learned Counsel for the parties and in view of the aforesaid changed

facts and circumstances of the case, the Court is of the view that now the respondent is not entitled to

get any maintenance from the revisionist as she has been appointed as a teacher in Govt. run school vide

appointment letter dated 24.12.2005 and thus she has got sufficient means to maintain herself. However,

the revisionist cannot shirk himself from the responsibility of maintaining his minor son. Therefore, it is

held that the respondent is not entitled to get any maintenance w.e.f. January, 2006 as she has been given

appointment vide letter dated 24.12.2005. However, revisionist is directed to pay Rs. 3000/- per month

to his minor son with effect from the date of the impugned judgment and order i.e. 4.9.2002 till the date

of attaining his majority. It is further made clear that arrears of maintenance @ Rs. 5000/- shall be paid

to the respondent w.e.f. from the date of impugned order i.e. 4.9.2002 till December, 2005. 8. In the

result, the revision is partly allowed. Judgment and order dated 4.9.2002 passed by the Principal Judge,

Family Court, Haridwar in Case No. 66/2002, Deepali Jain v. Vikas Jain u/s 125 CrPC stands modified to the

extent indicated above. Interim order dated 4.10.2002 stands 4 vacated. Arrears of maintenance after

adjusting the amount already given in terms of the interim order dated 4.10.2002 shall be paid to the

respondent within three months from the date of this order. (Dharam Veer, J.) 25.10.2010 PRABODH Vikas

Jain vs Smt. Deepali @ Ayushi Jain on 25 October, 2010 Indian Kanoon -

http://indiankanoon.org/doc/1439558/ 2

15

UTTARANCHAL HIGH COURT : Dated 18November,2009

No Maintenance u/s Crpc 125 if wife deserts husband

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 201 Of 2006 Smt. Archana

Gupta & Another .. Revisionists. Versus Sri Rajeev Gupta & Another .Respondents Mr. M.K. Goyal, learned

counsel for the revisionists. Mr. Rakesh Thapliyal, learned counsel for respondent no. 1. Mr. S.S. Adhikari,

learned A.G.A. for respondent no. 2. Dated: November 18, 2009 Hon'ble Alok Singh, J. (By the Court)

Present revision has been filed by the wife under Sections 397/401 Code of Criminal Procedure read with

Section 19(4) of Family Courts Act challenging the order dated 05.10.2006 passed by Principal Judge,

Family Court, Dehradun refusing to grant maintenance to revisionist no. 1. Heard Mr. M.K. Goyal, learned

counsel for the revisionists, Mr. Rakesh Thapliyal, learned counsel for respondent no. 1 and Mr. S.S.

Adhikari, learned A.G.A. for respondent no. 2. Learned counsel for the revisionists contended that finding

of the learned Principal Judge, Family Court, Dehradun on issue no. 1 that wife is living separately without

any sufficient cause is perverse. In nutshell, brief facts of the present case are that wife/revisionist no. 1

preferred an application under Section 125 Cr.P.C. against the respondent no. 1 seeking 2 maintenance

for herself and for their minor son, revisionist no. 2. The main grounds of claim mentioned in the

application are that husband has developed bad habits like consuming alkahol, gambling and adultery.

That husband wanted to dispose of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. That husband

has taken loan to meet his bad habits. It is further contended that husband is living separately and is not

maintaining the wife and son. In paragraph no. 8 of the application, it is pleaded that wife is working in

inter-college, Tanko, Saharanpur temporarily from where she is getting Rs. 2200/- per month. Husband

filed his written statement before the trial Court and denied the contentions made by the wife in the

application. In defence husband has specifically pleaded that wife is under the influence of her father.

That under the pressure of wife and her father husband/opposite party had to execute permanent lease

of his property in favour of the wife pertaining to property of House No. 416, Block-III, Khurbuda Mohalla,

Dehradun. It is further contended that at the time of execution of lease, it was agreed between the parties

that from the date of execution of lease wife would start living with the husband and her father would

not interfere in the matrimonial affair of the husband and wife. It was further pleaded by the husband

that it is the wife who wanted to live separately under the influence of her father. Further case of husband

is that she resigned from the service from where she was getting Rs. 3, 000/- per month and joined the

service at Saharanpur for Rs. 2200/- per month, under the influence 3 of her father. No prudent man shall

leave the service of the higher pay scale and shall join the service of the lower pay scale. It was further

contended by the husband that under the influence of her father, wife neglected Smt. Archana Gupta &

Another vs Sri Rajeev Gupta & Another on 18 November, 2009 Indian Kanoon -

http://indiankanoon.org/doc/1746587/ 1 the husband. The further case is that wife is residing separately

without any cause and reason. Learned Principal Judge, Family Court, Dehradun has framed three issues

in the matter. 1. As to whether wife is living separately without any appropriate reasons from the husband.

2. As to whether the applicant is unable to maintain herself and her son, applicant no. 2. 3. As to whether

the applicant is entitled for any maintenance for herself and minor son. Learned trial Court, while deciding

the issue no. 1, has recorded finding of fact that without any sufficient or reasonable cause wife is living

separately. Wife has refused to join company of husband despite the fact that husband wanted her to live

with him. It was further held by the learned trial court that wife is under the influence of her father and

could not prove allegations of bad habits like consumption of alcohol, gambling and adultery against the

husband. While deciding the issue nos. 2 and 3, learned trial Court declined to grant any maintenance to

the wife on the basis of finding recorded in issue no. 1 and on the ground that wife is employed and getting

Rs. 2200/- per month. However, learned trial Court granted Rs. 2000/- per month as maintenance for

applicant no. 2, i.e. minor son. Sub Section 4 of Section 125 Cr.P.C. can be pressed in the present matter,

which reads as under: 4 "(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". From the perusal of sub Section 4 of Section 125, if

wife refused to live with her husband without any sufficient reason, she would not be entitled to receive

any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her

husband without any reasonable cause and reason and refused to live with her husband despite offer by

the husband to live together. I, myself, carefully perused the statements recorded by learned trial court.

I find no perversity in the findings of fact recorded by learned Principal Judge, Family Court, Dehradun of

the fact that wife is living separately without any sufficient cause and reason and she refused to live with

her husband without any sufficient reason. In view of findings that wife is residing separately from her

16

husband without reasonable cause and reason, her application seeking maintenance was rightly rejected

by the learned trial Court. Wife is entitled for maintenance from the husband under sub Section a (1) of

Section 125 Cr.P.C., if she is unable to maintain herself. As per the admission made by the wife in the

application under Section 125 CrPC and as per the finding recorded by the learned Principal Judge, 5

Family Court, Dehradun, wife is employed in a school and getting salary of Rs. 2200/- per month.

Revisionist/wife nowhere says that out of this amount of Rs. 2200/- she is unable to maintain herself. On

this ground also revisionist is not entitled for any maintenance from the husband. Having perused the

record and findings recorded by the Principal Judge, Family Court, Dehradun, I do not find any valid reason

to interfere with the findings of fact recorded by the learned trial Court. The impugned Smt. Archana

Gupta & Another vs Sri Rajeev Gupta & Another on 18 November, 2009 Indian Kanoon -

http://indiankanoon.org/doc/1746587/ 2 judgment is hereby confirmed. Revision is dismissed. No order

as to costs. (Alok Singh, J.) 18.11.2009 Amit Smt. Archana Gupta & Another vs Sri Rajeev Gupta & Another

on 18 November, 2009 Indian Kanoon - http://indiankanoon.org/doc/1746587/ 3

17

DELHI HIGH COURT: Dated 10 September 2008

No maintenance to capable wife

IN THE HIGH COURT OF DELHI AT NEW DELHI Dated of Reserve: July 28, 2008 Date of Order: September

10, 2008 CM(M) No.539/2008 10.09.2008 Vijay Kumar ...Petitioner Through: Ms. Sunita Harish, Advocate

Versus Harsh Lata Aggarwal ...Respondent Through: Mr. M.S. Rohilla, Advocate JUSTICE SHIV NARAYAN

DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to

the reporter or not ? 3. Whether judgment should be reported in Digest ? JUDGMENT: 1. By this petition

under Article 227 of the Constitution of the India,the petitioner has assailed the order dated 29th February

2008 passed by learned trial court whereby the application of the respondent/wife filed under Section 24

of Hindu Marriage Act, 1955 was allowed and the trial Court granted a maintenance of Rs.10,000/- per

month to the respondent wife and also directed the husband to pay (petitioner herein) Rs.15,000/- as

litigation expenses. 2. The respondent wife in this case is an advocate. She is a postgraduate in law and

holds a diploma in Tax and is an advocate in the Supreme Court of India. She is also a notary public

authorized by the Government to attest documents. On the other hand, the petitioner is a retired

engineer. He was working in CPWD. After retirement, he opened two private limited companies viz

Integrated Techno Systems Pvt. Ltd and Integrated Techno Construction Private Limited. He is one of the

directors in both the companies. 3. Wife alleged that though she was an advocate and a notary public, but

she had no regular income from her profession and that during her stay in the Vijay Kumar vs Harsh Lata

Aggarwal on 10 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/770904/ 1 matrimonial

home, she was not allowed to practice. She was not able to maintain herself. About her husband, she

stated that her husband was having an income of approximately Rs.1 lac per month from various projects.

He also had a flat in Chirag Delhi worth Rs.20 lac and a flat near Chattarpur Mandir worth Rs.10 lac. He

was maintaining a car and was having FDRs. The assets of both the companies were around Rs.40 lac. 4.

The petitioner contended that he was having a pension of Rs.4192/-. He was getting a remuneration of

Rs.10,000/- per month from the company Integrated Techno Systems Pvt.Ltd. The other company

'Integrated Techno Construction was a non functional company and suffered heavy losses. The petitioner

also admitted he owned a flat at Chirag Delhi worth Rs.4.5 lac and a plot at Village Asola worth Rs.1.10

lac. He denied that assets of his companies were of Rs.40 lac. 5. About his wife he submitted that his wife

was earning interest in excess of Rs.8387/- per month from various investments. She was also earning

income through her joint business with her father and relatives. She was enrolled as advocate with Bar

Association of the Supreme Court of India and she had not disclosed her income from all sources, but still

has admitted her income as Rs.12,067/- per month. 6. Both the parties filed documents qua their income.

Income tax returns, balance sheets and affidavits etc were filed. The learned trial court, despite having

entire material before her, did not assess the income of both parties and passed an order merely looking

at the status of the husband as a qualified engineer having experience and directed him to pay a

maintenance of Rs.10,000/- per month to the wife. The order is very strange. It is not known to the law to

fix the maintenance for wife looking at the qualification and experience of a person ignoring the

qualifications and experience of the wife. If the husband was an engineer, the wife was an advocate. If

the husband was having experience Vijay Kumar vs Harsh Lata Aggarwal on 10 September, 2008 Indian

Kanoon - http://indiankanoon.org/doc/770904/ 2 as an engineer, the wife was having experience as an

advocate and was a notary public. Mere assertion of wife that she was in the past not allowed to practice,

would not mean that she has no professional income. She was enrolled as a member of the bar. She had

shown her previous income in her income tax returns. 7. It was expected of the trial court to assess the

income of both the sides. The maintenance was not be fixed by merely looking at the qualification of the

husband, ignoring the qualifications of the wife. The trial court also ignored the fact that the wife's

previous application under Section 24 was dismissed by a speaking order by its predecessor after taking

into account the material placed before it and the entire material was discussed. In order to justify passing

a different order, the trial court should have at least given reasons why she differed from the previous

order dated 24th July 2006. 8. A perusal of the income tax returns of the wife for the years 2001 to 2005

shows that the wife has been depositing regularly Rs.70,000/- per month in her PPF account. She was

having an LIC Policy where she had been paying minimum of Rs.9600 every year. She had been having an

interest income from investments and interest income from post office, UTI and from deposits with

Rajdhani Supply Company etc of around more than Rs.60,000/-. She had also shown her professional

income after deducting expenditure in the year 2004-05 as Rs.58,813/-. Her balance sheet in respect of

assets and liabilities shows that she had total assets in the form of units and deposits etc of Rs.12,73,615/-

. Thus, her monthly savings itself was around Rs.7000/-. Only that person can save Rs.7000/- per month,

who has sufficient monthly income. If it is presumed that her savings are 1/3rd of her entire income, her

18

income would come to around Rs.20,000/- per month. The income of the husband, as reflected from the

income tax returns and other documents, is also of the same level. The husband's annual income from

the salary and pension was Rs.1,72,000/-. He earned interest of Rs.13,742/- and had Vijay Kumar vs Harsh

Lata Aggarwal on 10 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/770904/ 3 paid

insurance premium of Rs.14,000/-. His total savings under Section 80(1) and 80(ccc) of the Income Tax Act

was Rs.86,706/- . 9. I consider that the income of both husband and wife is almost same. Both are almost

equally qualified. There was no justification before the trial court to grant any interim maintenance to the

wife. 10. As a consequence, the impugned order of learned trial court is hereby set aside, as far as interim

maintenance is concerned. However, the husband shall pay the litigation expenses, as ordered by the

learned trial court. 11. The petition stands disposed of in above terms. September 10, 2008 SHIV NARAYAN

DHINGRA J. Rd Vijay Kumar vs Harsh Lata Aggarwal on 10 September, 2008 Indian Kanoon -

http://indiankanoon.org/doc/770904/ 4

19

DISTRICT COURT, SAKET, DELHI: Dated 18 Nov 2010

Employable wife not entitled to maintenance.

IN THE COURT OF MS. POOJA TALWAR METROPOLITAN MAGISTRATE (MAHILA COURT – SOUTH EAST

DISTRICT) SAKET COURTS COMPLEX. NEW DELHI CC NO 352/3 In the matter of: - DAMAN REET KAUR….. ..

. …. .. …… COMPLAI NANT VS. INDERMEET SINGH JUNEJA…….. ……. … RESPONDENT DATE OF ORDER –

18.11.2010 ORDER ON INTERIM MAINTENANCE U/S 23 OF D. V. ACT 1. I shall dispose of an application

filed for interim maintenance under Section 23 Protection of Women under Domestic Violence Act,

(henceforth referred to as the D. V. Act). 2. The complainant has alleged that she has been subjected to

various forms of domestic violence by her husband, the respondent. It has been argued that the

respondent is working with Pitney Bose Software Company in Sector — 63, Noida and drawing an annual

salary of Rs. 20 lacs per annum. Besides this, it is also argued that he is running a profitable business of

computer software in a partnership along with his friend. Ld counsel for the complainant has prayed that

the complainant is facing extreme hardship as the parties are habitual of enjoying a lavish life style, and

therefore, suitable maintenance may be granted for food, clothing, residence apart from other basic

necessities in accordance with the standard of living of the parties such as decent education of the child,

clothes and toiletries of the child, her vaccination, maid servant and her expenses, car petrol and

maintenance charges, mobile bills, electricity, water expenses and suitable Life Insurance Policies etc. 3.

To support their averments both the parties have placed their salary slips on record. The complainant has

also placed his ITRs for the last two years where his income is depicted to be approximately Rs. 14 lacs

per annum. 4. In reply, Id counsel for the respondent has vehemently denied that any form of Domestic

Violence has been ever committed upon the complainant. As regards the income, it has been denied that

he is earning Rs. 20 lacs per annum and admitted that his monthly income is Rs. 85,000/- per month and

also submitted that the complainant is presently working with Metlife and getting more than Rs. 50,000/-

per month income and therefore, she is not entitled to get any maintenance as she is earning sufficiently

to sustain herself. 5. The present application has been filed under Section 23 of the Domestic Violence Act

for grant of maintenance. It would be essential to mention here that earlier application under Section 23

was filed along with main petition in which monetary relief was not claimed where as in the present

application which is again filed under the same Section in which the monetary relief has been claimed. It

has been objected to by the respondent in the reply to the application that the same does not lie and the

application should have been filed under Section 25 (2) of D. V. Act. Without going into the technicalities,

the application may be read as an application under the relevant provisions of the D. V. Act. 6. I have

heard the submission advanced by counsels for both the parties. It has been stated by the counsel for the

complainant that the complainant has all along been very fair and honest in her complaint by submitting

that she was working and had means to sustain herself. She has not filed application for grant of interim

maintenance for herself as she was earning sufficiently to maintain herself and take care of her daily needs

but today the situation has changed and she is jobless and totally dependent on the mercy of her old and

ailing parents. 7. The present application has been strongly opposed by the counsel for the respondent

with a catena of judgments showing that having a capacity to work and choosing not to work is no ground

for grant of maintenance, as, admittedly the complainant is well educated lady who has been earning

approximately Rs. 50,000/- per month from her last job. If she has chosen not to work out of her own

sweet will she cannot be permitted to take advantage of her own deed. In one of the judgments filed by

the respondent it is well-established maxim of Anglo Saxon jurisprudence that ‘no person can be allowed

to incapacitate himself”. The gist of all the judgments filed by the respondent is that when the complainant

is an able bodied person having capacity to earn and has actually been earning in the past is not entitled

to receive any maintenance. When she could sustain herself by earning handsome salary in the past she

would be able to get a job if she earnestly tries to search one. 8. As regards the maintenance of the child,

the respondent has conceded that he is ready and willing to bear the expenditure of the child by accepting

the fact that he is equally liable to maintain his child as her mother is. 9. Pursuant to what has been stated

by both the counsels for the parties, I am of the view that although the complainant has been working in

the past but the situation today is that she is not earning and that she has no money to sustain herself but

then it cannot be denied that she is in a capacity to work and with earnest effort she shall be able to search

a suitable job for herself. 10. As far as the maintenance of the child is concerned, since she is not the

petitioner in the present complaint I would not be able to pass any orders as regards the maintenance for

the daughter of the parties. Since the respondent has conceded to the fact that he is ready to maintain

the child, he can do so voluntarily of his own accord. 11. As far as the maintenance of the complainant is

20

concerned I am not inclined to pass any orders for maintenance. 12. Accordingly, the present application

is disposed of. Announced in the open Court on 18.11.2010

UTTARANCHAl HIGH COURT : Dated 17 March, 2011

HC Quash Maintenance

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 356 of 2010 Smt. Pratiksha

Arya W/o Sri Deepak Kumar Arya D/o late Shri Mahesh Chandar Arya R/o Staff House Compound, Mallital,

Nainital, District Nainital. ... . Appellant Versus Sri Deepak Kumar Arya S/o Sri Daulat Ram R/o Teachers

Colony, Kichcha, Tehsil Kichcha, Distt. Udham Singh Nagar. ... . Respondent Mr. Akhil Kumar Sah, Advocate,

present for the appellant. Mr. D.S. Mehta, Advocate, present for the respondent. Coram : Hon'ble Prafulla

C. Pant, J. Hon'ble V. K. Bist, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of

the Family Courts Act, 1984, is directed against the order dated 16.08.2010, passed by Principal Judge,

Family Court, Nainital, in Civil Suit No. 148 of 2009, whereby said court has directed the appellant to pay

maintenance at the rate of ` 2,500/- per month to her husband 2 (respondent) under Section 24 of the

Hindu Marriage Act, 1955. 2) Heard learned counsel for the parties. 3) Brief facts of the case are that

parties to this appeal are in litigation before the trial court where respondent Deepak Kumar Arya has

filed a petition for divorce against the present appellant Pratiksha Arya. In said suit, he moved an

application under Section 24 of the Hindu Marriage Act, 1955, for maintenance at the rate of ` 10,000/-

per month from his wife Pritiksha Arya. The application was contested by the wife, who alleged that her

husband runs a computer center at Kichcha, and owns property worth lakhs of rupees there. 4) Section

24 of the Hindu Marriage Act, 1955, applies equally to both spouses. It provides that where in any

proceeding under the Act it appears to the court that either the wife or the husband, as the case may be,

has no independent income sufficient for her or his support, it may, on the application of wife or the

husband, order Smt. Pratiksha Arya vs Sri Deepak Kumar Arya on 17 March, 2011 Indian Kanoon -

http://indiankanoon.org/doc/1119836/ 1 the other party to pay monthly maintenance during the

proceeding initiated under the Act. Normally, in the Indian society, we see husband as an earning member

in the family and wife dependent on him. But Section 24 takes note of all kinds of situation including the

one in which husband is unable 3 to maintain himself and dependent on his wife. As such, as far as

maintainability of the application moved by the husband is concerned, the same was maintainable,

seeking maintenance from the wife. 5) However, whether actually in the present case, the husband was

entitled for maintenance under Section 24 of the Hindu Marriage Act, 1955, is required to be examined.

The husband has moved an application for maintenance on the ground that his wife is a teacher and

earning ̀ 18,000/- per month (actually found ` 9,300/- per month). He has pleaded that he is not employed

anywhere. On the other hand, in the objections filed before the trial court by the present appellant it is

specifically pleaded that her husband Deepak Kumar Arya (present respondent) runs a computer center

in Kichcha. It is also pleaded by her that her husband owns property worth lakhs of rupees. The trial court

has simply taken note of the fact that since the present appellant is a teacher in a primary school and

getting salary of ` 9,300/- per month, it directed the appellant to pay maintenance at the rate of ` 2,500/-

per month to her husband. The trial court has ignored the economic status of the husband. It is nowhere

categorically discussed nor concluded by the trial court that the husband does not run the computer

center or does not own any property, as alleged by his wife. It is also evident from the impugned order

that present appellant 4 (wife) is a teacher in a primary school at some interior place of posting. 6) Having

considered submissions of learned counsel for the parties and after going through the papers on record,

we are of the view that though the application by the husband was maintainable under Section 24 of the

Hindu Marriage Act, 1955, but in the facts and circumstances of the present case, it is not a fit case for

granting maintenance to the husband by the wife. Therefore, without observing any opinion as to the final

merits of the case pending before the trial court, this appeal is allowed, and the order dated 16.08.2010,

passed by Principal Judge, Family Court, Nainital, in Civil Suit No. 148 of 2009, is set aside so far it relates

to the direction to the present appellant to pay maintenance at the rate of ` 2,500/- per month to her

husband. Costs easy. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 17, 2011. H. Negi Smt. Pratiksha Arya vs

Sri Deepak Kumar Arya on 17 March, 2011 Indian Kanoon - http://indiankanoon.org/doc/1119836/ 2

21

Mumbai Family Court: Qualified wife can’t sit idle and claim maintenance: Mumbai

family court : Firdos Mohd. Shoeb Khan vs Mohd. Shoeb Mohd Salim Khan – Mumbai

family court 2015

Full judgment text below:

IN THE FAMILY COURT MUMBAI AT BANDRA

PETITION NO. E 119 OF 2013

Firdos Mohd. Shoeb Khan .. Petitioner Vs.

Mohd.Shoeb Mohd.Salim Khan .. Respondent

ORDER BELOW EXH.27

1. This is an application moved by petitionerFirdoz Mohd. For grant of maintenance from

her husband Mohd.Shoeb, during the pendency of petition for grant of maintenance u/s

125 of Cr.P.C. It is submitted by the petitioner that at the time of Nikah Meher amount of

Rs.14 lakhs was fixed, yet said amount was not paid by the respondent. Throughout their

cohabitation at the matrimonial house the respondent and his family members had

illtreated her, harassed her physically and mentally for bringing less dowry. The

respondent and his family members had demanded more Rs.50 lakh as dowry and gold

ornaments, Mercedes Benz Car etc. from her parents. Due to demand of dowry the

petitioner was forced to live separately from April 2011, since then she is residing with

her parents. She has no source of income and she is totally depend upon the mercy of

her parents. The respondent is capable to pay maintenance to her but he has neglected

and refused to pay maintenance.

2. The respondent is a successful businessman, his family is business family. The

respondent alongwith his family members was doing business not only in India but also

in Dubai and other countries. They are running their business jointly and earning the

income more than Rs.15 lakh per month. The respondent and family members were

having property at Mumbai, Bangalore, Dubai and other places. The respondent is having

six companies, 20 bank accounts at Mumbai, Dubai and Bangalore. His younger brother

is working at London, his two siblings are in family business. The respondent is travelling

abroad for garment business work. Considering the status of her husband she prayed for

grant of maintenance @ Rs.2 lakhs per month.

3. The respondent has filed his reply below Exh.29. According to him, the petitionerwife

is not entitled to get maintenance as she is not legally wedded wife. The marriage

22

between petitioner and respondent was dissolved by way of Talaq on 7.09.2014.

Secondly, the petitioner is well qualified having good experience and good income

therefore, she is not entitled for grant of maintenance. The petitioner has given false

address before this Court, actually all earlier communication was made on the address of

ancil Tower, New Mill Road, Kurla.

4. The petitioner is living luxurious life, she has huge investment including over rs.1 crores

worth of gold and diamond jewellery hidden in separate locker. She is flying international

destination at least thrice every year for 15 to 30 days. The petitioner is graduate and

working independently in a prime institute likely Nair hospital, Larsen & Tubro etc.

Presently she is practicing as a dietitian. Her income is not less than Rs.50,000/per

month. She is having sufficient means from her own source, on that count also she is not

entitled for grant of maintenance hence, respondent prayed for rejection of application.

5. Heard learned counsel for petitioner and respondent. It is argued by the learned

counsel for respondent that on 7.9.2014 their marital tie was dissolved as he had given

talaq to her therefore, petitioner has lost the status of wife and being divorcee Muslim wife

she is not entitled to get maintenance from the respondent. The Mohd. Law is drastically

changed in a recent era. Now a days a Muslim woman who is divorcee or who obtained

divorce from her husband is entitled to get maintenance from her husband till she gets

remarried. Apart from this, Section 125 of Cr.P.C., itself has given defination of ‘wife’

which includes divorcee wife. Section 125 explanation (b) read as under :(b) “wife”

includes a woman who has been divorced by, or has obtained a divorce from, her

husband and has not remarried.”

6. The above clause clearly shows that the wife though divorcee is entitled to get

maintenance from her husband and divorcee wife is included by Legislature in the

defination of wife for the purpose of maintenance. The Law in respect of maintenance of

Muslim wife is day by day changing. First time in the case of Shabana Banoo Vs. Inbram

Khan, reported in I (2010) D.M.C. 37, (SC), the Hon’ble Supreme Court has held that the

Muslim Divorcee wife is entitled to get maintenance from her husband.

7. While dealing with the case of Parveen Rao Vs. State of Utterakhand and another,

reported in I (2013) D.M.C., 743, the Hon’ble Utterakhand High Court in para No.12 held

that,

“In view of proposition of law laid down in aforesaid precedent, it is abundantly clear that

the Muslim woman cannot be forced to claim maintenance under the Act only. She is well

entitled to claim maintenance u/s 125 of Cr.P.C. irrespective of fact whether she has been

divorced or not provided she has not remarried herself.”

8. In the anvil of above legal position it is clear that the Muslim woman who is either

divorcee or who obtained divorce entitled to get maintenance till her remarriage. In such

circumstances the story brought by respondent that on 7.09.2014 talaq took place

between them does not affect the right of petitioner to claim maintenance. The story

brought by the respondent that on 7.9.2014 he had given talaq to her is the subject matter

23

of evidence and it can be proved during the course of proceeding but at this stage, the

status of respondent cannot be denied. She is having status of wife which is required u/s

125 of Cr.P.C., may be or may not be she is divorcee or non divorcee wife but she is

entitled to get maintenance from her husband. Secondly, making story that the husband

has given divorce to wife itself entitles the wife for seeking relief of maintenance. When

the husband is coming with the case that he has already given divorce and wife is denying

the same, then certainly this act comes under the purview of cruelty which entitle the

petitioner for seeking relief.

9. It is argued by learned counsel for petitioner that respondent is owner of (i)Khwaja

Exports Pvt.Ltd.,(ii) Khan Holdings Pvt.Ltd.(iii)Keygien Textile Industries Pvt.Ltd.(iv)

Keygien Global Ltd.(v)Radium Garments Pvt.Ltd. And (vi) MSK Technology Solutions

Pvt.Ltd. The petitioner has placed on record the internet output documents respondent is

managing director/directors of above stated company. The respondent is joined Keygien

Global Ltd. on 26.3.2001, he had joined Keygien Textile Industries Pvt.Ltd. On the same

day. He was joined the Khan Holdings Pvt.Ltd. On 25.3.2001. The companies joined him

at similar period. A single document is not placed on record to show the net income getting

by respondent from above company. The petitioner has given list of the bank accounts

hold by respondent and his family. The respondent is holding bank account before HSBC,

DIB, ADID (two accounts), S.B.I., Oriental bank of commerce (three accounts) and she

has given account nos. She had also given the details of bank account hold by

respondent’s family, in all total she had provided list of 20 bank accounts. Either of the

parties has not placed on record a single bank account statement or passbook issued by

Bank.

10. It is admitted position that the respondent and his family members are connected with

five companies namely (i)Khwaja Exports Pvt.Ltd.(ii) Keygien Global Ltd.(iii)Radium

Garments Pvt.Ltd.(iv) Khan Holdings Pvt.Ltd. The letter issued by P.L. Babaria &

Associates Chartered Accountant dated 19.12.2014 shows that the respondent is having

500 share in Khawaja export Pvt.Ltd. Having paid value of rs.5,000/. In other companies

he have no share. The above stated Chartered account also certified that in the year

201112 the income of respondent was rs.1,50,670/, in the year 201213 it was

Rs.1,81,844/, in 201314 rs.2,00015,/, and in the year 201415 his income was

rs.2,10,013/. The income tax returns filed alongwith record shows same story.

11. The statement made by the parties in their earlier proceeding is admissible statement.

It appears from the record that the respondent has filed reply to the application of

petitioner before 29th Court M.M.Dadar, Mumbai in case No.25/RA/2012 N 372/2012

relating to Cr.No.367/2011. In her reply she had stated as follows : I would further like to

bring it to your notice that my husband Mohammed Shoeb Khan has not travel out of

India. Since August 2010 for any purpose (i.e. not even for business nor for Umrah).

12. The statement made by the petitionerwife clearly shows that the respondent never

went to abroad since 2010. Similarly in the same application she had stated that, “I would

further like to inform you that my husband has been residing in Dubai since 1992 ( for 16

24

years) he holds property in Dubai and reissued Passport of Dubai and he has no property

in Mumbai and elsewhere in India and he merely holds 500 shares of value Rs.10 (5000

Rs.) in his Garment business”. The above statement made by petitioner support the

version of respondent as well as C.A.,of respondent that respondent is holding only

property worth Rs.5,000/ in Khawaja Export Pvt.Ltd.

13. In respect of the allegations made by the petitioner in her application filed before M.M.,

that he is having property at Dubai. Said version if taken into consideration then also she

had not filed single documentary evidence to establish above fact. The petitioner has not

taken pain to file the memorandum and article of association of company which shows

real pictures. The petitioner has not asked the respondent to file the memorandum of his

company or memorandum of companies hold by his family. The copies of article of

association and memorandum is easily available before the Competent authority.

14. The respondent is submitting that he is earning meagre amount and he is residing on

leave and license basis. The respondent has filed on record leave and license deed dated

20.10.2014. Said leave and license agreement is not challenged by the petitioner. It is

further argued by the learned counsel for petitioner that the respondent and his family

members are doing business and they are earning an amount of Rs.15 lakh per month.

The respondent has moved an application for travelling abroad before M.M. Dadar, in

criminal case No.1067/PW/2012. In the said application para No.3 the respondent has

submitted that he is businessman and he had registered office at Shivri and factory at

Bangalore. He is doing business of export of readymade garment to the Gulf countries.

In connection with business he is required to travel abroad. In para 6 of that application

he further stated that he has come from business family and he has deep root in the

society, his family is respectable family. The application for return of passport filed before

M.M. Dadar, at the hands of respondent shows that the respondent himself has stated

that he was going to London from Bangalore for business deal as his factory is situated

at Bangalore. He is engaged in garment factories and required to go abroad in connection

with his business. The above statements made by petitioner and respondent are the

admissions given by them.

15. The petitioner has admitted that respondent have no property except worth Rs.5,000/-

in India but at the same time she tried to affirm that respondent is having property at

Dubai. The statements made by petitioner as well as the statement made by respondent

that he is having office at Mumbai and factory at Bangalore, he used to travel abroad for

garment business purpose shows that the parties have affirmed some facts by way of this

admission. Admittedly the respondent and his family are connected in garment business.

To show details of share no factory details, account statement of factory or memorandum

and article of factories are not placed on record. The above admissions given by both the

parties come under the purview of Section 17 of Indian Evidence Act which suggests the

existence and non existence of economic affairs of both the parties. Once the fact is

affirmed by the parties to the proceeding subsequently the parties are not entitled to

change their view as per the evidence act admission operates estoppel.

25

16. The learned counsel for respondent has argued that the petitioner is well qualified

and she is earning an amount of Rs.50,000/per month, she is having sufficient income for

her maintenance. It is argued by the learned counsel for respondent that before the police

station Worli on 12.11.2011 the petitioner has given statement u/s 161 of Cr.P.C. The

petitioner has admitted that she has completed degree in Food and Science Nutrician,

she had worked as a dietician, she is Post Graduate in Dietician field, she had also worked

with Larcen and Tubro etc. but at present she is not working. The above statement made

by the petitioner clearly shows that she is well qualified and able to do job. The respondent

though submitted that she is having huge investment in crores of rupees but nothing is

placed on record. It is clear from the statement of petitioner that petitioner is well qualified

having capacity to earn. The Hon’ble Madhya Pradesh High Court in the case of “Mamta

Jaiswal Vs. Rajesh Jaiswal held that well qualified wife is not entitled to remain as an idle

and claim maintenance from her husband. In short, the wife is not entitled to advantage

of her own wrong, she cannot harass the husband on the count of maintenance though

she is capable to earn. In the present case in hand, the petitionerwife is very qualified,

she has worked with various companies. This admitted by herself, now she is claiming

that she is a housewife, having no source of income. The wife who is well qualified and

claiming maintenance by sitting idle is not entitled to get maintenance, secondly she

herself has admitted that though her husband is connected with garment business but he

has share worth rs.5,000/only. Considering the above circumstances, it is clear that the

wife is having good capacity to earn. According to respondent, she is earning but no any

documentary evidence is on record that she is earning. Nothing is on record to prove the

income of respondent at this primary stage. In such circumstances, in my view, at this

juncture petitioner is not entitled to get maintenance. Hence I pass the following order :

ORDER

1. The application is rejected.

Dt: 20th February, 2015. Family Court No.7, Mumbai.

Sd/20.2.2015

( S.A. Morey ) Judge,

26

Mumbai High Court: 1st July 2010

No proof of cruelty leads to no maintenance

In this Bombay High court bench’s judgment, the principle adopted is that though strict

proof of cruelty is not required in maintenance under CrPC 125, nevertheless the

statements made by wife need to have some supporting evidence at least. Read the

bold sentences in the end of judgment.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.226 OF 2002

Sanjay Sudhakar Bhosale,

Age : 35 years, Occu.Service,

R/o. Mental Hospital Servant Quarters,

Yeroda,Pune District Pune – 6 …Petitioner

Versus

Khristina w/o Sanjay Bhosale …Respondent

…..

Mr.Gopal D.Kale, Advocate for the petitioner

Mr.N.K.Choudhari, Advocate holding for Mr.R.N.Dhorde,

Advocate for respondent

…..

CORAM : V.R. KINGAONKAR, J.

Date of Reserving the Judgment: 24.3.2008

Date of Pronouncing the Judgment: 8.4.2008

JUDGMENT

1. By this revision petition, petitioner seeks

immunity from liability to pay maintenance allowance

as per Judgment rendered in Criminal Revision

Petition No.60 of 2000, by learned Additional

Sessions Judge, Shrirampur, to respondent. He

challenges the said Judgment reversing order of

dismissal of the respondent’s application for

maintenance passed by learned Judicial Magistrate

(First Class), Shrirampur.

2. It would be useful to first note the admitted

facts. The spouses belong to Christian community.

Their marriage was performed on 14.5.1998 in

accordance with tenets of Christian religion. The

27

petitioner is employed as Wardboy in Yerwada Mental

Hospital, at Pune. He resides in one of the

Government quarters, out of nine such quarters, which

are in one row, situated at back side of the mental

hospital. He was a divorcee when he performed

marriage with the respondent. She went to reside

with him after the marriage. His parents and two

brothers reside with him in the same residential

quarter. The marriage was shortlived. The spouses

are incompatible.

3. The respondent (wife) filed application under

Section 125 of the Cr.P.C. for separate maintenance

allowance. She asserted that for about six months,

she was somehow treated alright in the matrimonial

home. Thereafter, the husband started mental and

physical harassment to her at instigation of his

parents and brothers. Her in-laws used to express

dissatisfaction regarding gifts given in the

marriage. They used to abuse her. The husband

(petitioner) used to beat her in drunken condition.

He used to make unlawful demand of gold locket

weighing 15 gms., a T.V. set and a mixer, which she

was asked to bring from the parents. Her parents

attempted to convince and plead with her husband.

Still, however, he and his relatives continued the

unlawful demand, which her parents were unable to

meet out. He used to suspect her fedility. She

apprehended danger to her life in the matrimonial

home. He mercilessly beaten up her on 21.2.1999 and

drove her out of the matrimonial home. She lodged a

complaint at the Police Station. She is unable to

maintain herself. The husband (petitioner) has got

sufficient means to provide separate maintenance.

Consequently, she demanded separate maintenance

allowance at rate of Rs.1,500/- (Rs.One thousand five

hundred) from him.

4. By filing written statement (Exh.14), the

husband (present petitioner) denied truth into all

the material allegations made by the wife. He denied

that she was being ill-treated or harassed in the

matrimonial house. He submitted that on 5th October,

1998, maternal uncle of the respondent (wife) visited

28

his house and pretended that her another maternal

uncle, who is inhabitant of Ahmednagar, was seriously

ill. Lateron she went with her brother. She did not

return home after 2/3 days as per the assurance and

hence, he visited her parents’ house on 25th October

1998. They assured him to send her after the “Natal”

festival. Thereafter, they avoided to send her and

she refused to accompany him. He was ready and

willing to maintain her. She deserted him without

any substantial reason. He denied that she was

neglected by him. He urged, therefore, to dismiss

the application.

5. The parties went to the trial before the

learned Judicial Magistrate (F.C.), Shrirampur in the

proceedings (Criminal M.A.No.85 of 1999). The

respondent examined herself in support of her

application. The present petitioner also examined

himself and adduced evidence of two neighbours in

support of his defence. On appreciation of their

evidence, the learned Magistrate came to the

conclusion that the respondent (wife) failed to prove

that she was neglected and refused to be maintained

by the husband. The learned Magistrate held that

within a short span of five months of the marriage,

she left his company, probably because she wanted

separate residence without domestic chore in respect

of his parents and the brothers. The learned

Magistrate held that allegations of matrimonial

cruelty are invented by the respondent (wife) and

were unacceptable. In keeping with such findings,

her application was dismissed.

6. Feeling aggrieved, the wife preferred revision

application (Cri.Revision Petition No.60 of 2000),

which was allowed under the impugned order. The

revisional Court reversed findings of the learned

Magistrate and came to the conclusion that the

version of the wife could not be discarded in the set

of circumstances. The revisional Court awarded

maintenance allowance at rate of Rs.700/- (Rs.Seven

hundred) p.m. in her favour from date of the

application. The husband impugns Judgment rendered

by the learned Sessions Judge in the revisional

29

jurisdiction whereby the criminal revision petition

No.60 of 2000 was allowed.

7. Clinching question is as to whether the

findings of the learned Judicial Magistrate could be

regarded as perverse, arbitrary and patently

erroneous so as to warrant interference by the

learned Sessions Judge in the exercise of revisional

jurisdiction. It is well settled that, normally, the

revisional Court will not reappreciate the evidence.

The impugned Judgment does not show that the learned

Sessions Judge recorded finding that the appreciation

of the evidence, as done by the learned Magistrate

suffered from vice of arbitrariness, perversity or

capriciousness.

8. In the above background, I would briefly take survey of the evidence tendered by the

parties. PW-1 Khristina (wife) testified that after six months of the marriage, the

husband and his relatives started giving cruel treatment to her on account of demand of

money. This part of her statement is discripant with allegations in the pleadings. In her

application,she alleged that a gold locket, weighing 15 gms, a T.V. set and a mixer were

demanded by the husband from her parents. There is no whisper of any such demand

throughout her oral statement before the learned Magistrate. She stated that on 21st

February 1999, the husband beaten up her and drove her out of the house. She lodged

a complaint at the Yerwada Police Station, Pune. Her version shows that she had

written two letters and narrated her plight in the matrimonial home to her father. Her

brother used to visit her matrimonial home. Neither of them entered the witness box nor

the letters sent by her or copy of Police complaint lodged by her, have been placed on

record. Her real married sister, by name, Archana resides in Yerwada locality at Pune.

Her maternal uncle resides at Akurdi, Pune. She admits that she never informed her

sister or any other relative about the ill-treatment meted out to her at hands of the

husband and his relatives, except and save to her father. This conduct of the

respondent was duly noticed by the learned Magistrate. She admitted that on 5th

October 1998, her brother and maternal uncle visited the house of her husband to

inform that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering

from illness. This admission corroborates contention of the husband that she was

allowed to go to Ahmednagar to meet her ailing maternal uncle.

9. The learned Magistrate also noticed that the two neighbours, namely, DW-2

Shubhangi and DW-3 Bashid corroborated version of the husband. The version of DW-1

Sanjay (husband) would show that there was no ill-treatment given to the wife. He

states that on 5th October 1998, brother of the wife and her maternal uncle visited his

house and informed that her another maternal uncle, who is inhabitant of Ahmednagar,

was suffering from illness and they requested him to send her with them. His version

shows that he allowed them to take her away after 2/3 days. Thereafter, on 11th

30

October 1998, her brother took her to Ahmednagar. His version shows that he made

attempts to fetch her back but it was invain.

The version of DW-Shubhangi reveals that the petitioner and his wife were never seen

quarrelling with each other. Her version reveals that the respondent (wife) resided with

the petitioner only for five months after the marriage and he is not addicted to any vice.

There is only a middle wall between the residential quarter of the petitioner and DW-

Shubhangi. She has no reason to speak lie nor any tangible material is gathered during

her cross-examination. Similarly, DW-3 Bashid deposed that after five months of the

marriage, the wife left house of the petitioner – Sanjay. In other words, the version of

petitioner – Sanjay stands corroborated by the versions of two neighbours.

10. There is solitary and interested version of PW-Khristina in support of her application

for separate maintenance allowance. Her version gives inconsistent account about so-

called unlawful demand.

She deviated from her pleadings. The findings of the learned Magistrate are based on

due appreciation of the evidence. The further development may be noticed. The

petitioner filed an application for restitution of conjugal rights in the Family Court at

Pune. His application (P.A.No.500 of 2002) is allowed by the Family Court on 21st July

2003. So far, the respondent (wife) has not challenged the Judgment of the Family

Court. The Family Court raised a specific issue as follows :

” Whether the petitioner proves that the respondent without any reasonable excuse has

withdrawn from the society ?” . The learned Judge of the Family Court recorded an

affirmative finding on the said issue. It is manifest, therefore, that not only the learned

Judicial Magistrate, on appreciation of the evidence tendered by the spouses, came to

the conclusion that she left his house, probably under burden of the domestic chores,

but the civil Court also found that she is guilty of deserting him without any reasonable

excuse.

11. The impugned Judgment reveals that the learned Sessions Judge undertook

reassessment of the entire evidence though he was supposed to exercise the revisional

jurisdiction. The learned Sessions Judge did not find any particular fault in the process

of appreciation of evidence, as done by the learned Magistrate. The relevant

observations of the learned Sessions Judge may be reproduced as follows : “14.On

carefully scrutinising the evidence of the applicant and opponent it will reveal that the

matrimonial life of the applicant was not smoothly going on due to some quarrel and

ultimately, it was resulted into leaving the house of opponent, by the applicant.

Observations made by the lower Court that the applicant had stayed for short period in

the house of the opponent and therefore, there is no possibility of ill-treatment, does not

appear to be proper and legal in the circumstances of the case.

When the applicant has positively stated that she was subjected to ill-treatment not only

that but she has lodged complaint in Yerwada Police Station, this will prima-facie give

rise that she was ill-treated and, therefore, she has left the house of the opponent.

Provisions of Sec.125 of Code of Criminal Procedure need not require that there must

be a strict proof of cruelty”.

31

. The above observations of the learned Sessions Judge would indicate that he

accepted version of the wife only because she gave positive statement that she was

subjected to ill-treatment and had lodged the complaint at Yerwada Police Station. As

stated before, there is no scintilla of evidence to show that really she had lodged

a complaint about the matrimonial cruelty. Nor her so-called positive statement

finds support from her pleadings. In this view of the matter, it is difficult to

countenance the findings of the learned Sessions Judge. Her mere statement could not

have been taken as gospel truth as regards neglect and refusal of the husband to

maintain her. It is overlooked by the learned Sessions Judge that within a short

span of the marriage, the wife left his company and no notice was given within a

reasonable time by her, seeking restitution of the conjugal rights.

12. The Apex Court, in “Deb Narayan Halder vs.Smt.Anushree Halder” 2003 (3) B Cr C

286, held that the appellate Court or revisional Court while setting aside findings

recorded by Court below must notice those findings and where the findings are of

facts,evidence on record must be discussed, which should justify reversal of findings

recorded by the Court below. The Apex Court held that when the maintenance

application of the wife was rejected by the learned Magistrate, holding that she had on

her own left the matrimonial home, the High Court was not justified in reversing such

findings recorded by the trial Court and to grant maintenance to the wife.

13. In view of foregoing discussion, it will have to be said that the findings of the learned

Magistrate should not have been interfered with by the revisional Court and for the

reasons, which are recorded by it. The inferences drawn by the learned Sessions Judge

are improper and incorrect. There is misinterpretation of the evidence by the learned

Sessions Judge. Under these circumstances, the impugned Judgment is unsustainable

and liable to be interfered with.

14. In the result, the petition is allowed. The impugned Judgment is set aside and the

Judgment rendered by the learned Magistrate in Criminal Misc.Application No.85 of

1999 is restored. The wife’s application under Section 125 of the Cr.P.C. is dismissed.

However, the payment of maintenance allowance, if any, during the intervening period,

is not refundable by her. No costs.

( V.R.KINGAONKAR )

JUDGE

(vvr/crirev226.02)

32

MP HC denies maintenance to wife on her CrPC 125 appeal

Important parts of judgment:

On the basis of aforesaid letters and admission of the applicant in her cross-

examination, learned

trial Court had recorded a finding that she was never ill-treated by her husband or in-

laws but she

was unable to adjust herself in her matrimonial home; therefore, she did not want to

stay with her

husband and wanted to get rid of him. On the basis of her categorical admission that

she had

written a letter to her father stating that she has no complaint against her in-laws but

she was

unable to adjust with them; therefore, she wanted to marry somewhere else, learned

trial Court

proceed to record the finding that the applicant had left her husband of her own freewill

and

accord. It cannot be said that she had to leave her matrimonial home on account of any

ill-

treatment, misbehavior or harassment on the part of her husband or in-laws.

On aforesaid grounds, learned trial Court held that the applicant was not entitled to any

maintenance.

Full judgment text below:

Madhya Pradesh High Court

Smt. Aradhana Tiwari vs Deepak Tiwari on 16 July, 2015

CRR-604-2010

(SMT. ARADHANA TIWARI Vs DEEPAK TIWARI)

16-07-2015

None for the applicant.

Shri S.K.Mishra, counsel for the respondent.

A perusal of the record reveals that no one had appeared on behalf of the applicant to

prosecute

this Criminal Revision on two previous dates, namely 06.05.2015 and 29.06.2015.

33

On last date, the Court had made an observation that if no one appears on next date to

argue on

behalf of the applicant, the Revision Petition shall be dismissed for non-prosecution, in

view of

the nature of the impugned order.

Even then, no one has appeared before the Court to argue on the matter on behalf of

the

applicant. This Criminal Revision is yet to be admitted. In aforesaid circumstances, the

Court

shall proceed to decide it on merits without the benefit of arguments advanced on behalf

of the

applicant.

This Criminal Revision has been preferred against the order dated 22.01.2010 passed

by the

Court of 1 st Additional Principal Judge, Family Court, Jabalpur, in MJC.No.01/2009,

whereby

the application for maintenance filed under Section 125 of the Code of Criminal

Procedure by

the applicant Aradhana Tiwari was dismissed on the ground that the applicant had failed

to prove

that the non-applicant husband had neglected or refused to maintain her and she was

staying

away from him without any reasonable and just cause.

It has been observed by learned trial Court that the non- applicant husband had filed

letters

exhibit D-1 to D-4, whereby it is evident that the non-applicant husband never

misbehaved with

the applicant. It was further observed that the applicant had admitted in her cross-

examination

that she used to write letters to her husband that she has no problem in her matrimonial

home and

she also admitted that she had written a letter from her matrimonial home to her father

expressing that she is not happy in her matrimonial home and imploring him to take her

from

matrimonial home to her parental home and marry her off somewhere else. She also

admitted

during the cross-examination that she has spends most of time in her parental home

after the

marriage. She has also admitted that she was treated for mental ailments before her

marriage and

also after it.

34

On the basis of aforesaid letters and admission of the applicant in her cross-

examination, learned

trial Court had recorded a finding that she was never ill-treated by her husband or in-

laws but she

was unable to adjust herself in her matrimonial home; therefore, she did not want to

stay with her

husband and wanted to get rid of him. On the basis of her categorical admission that

she had

written a letter to her father stating that she has no complaint against her in-laws but

she was

unable to adjust with them; therefore, she wanted to marry somewhere else, learned

trial Court

proceed to record the finding that the applicant had left her husband of her own freewill

and

= Page 1 =

accord. It cannot be said that she had to leave her matrimonial home on account of any

ill-

treatment, misbehavior or harassment on the part of her husband or in-laws.

On aforesaid grounds, learned trial Court held that the applicant was not entitled to any

maintenance. On perusal of record, there is no reason to take a different view in the

matter; as

such, the impugned order does not suffer from any illegality, irregularity or impropriety

warranting interference by this Court. Consequently, this Criminal Revision deserves to

be and is

accordingly dismissed.

(C V SIRPURKAR) JUDGE

35

No maintenance to wife who failed to prove allegations

December 1, 2010Fighting Legal TerrorLeave a commentGo to comments

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CASE NO.:

Appeal (crl.) 1059 of 2003

PETITIONER:

Deb Narayan Halder

RESPONDENT:

Vs.

Smt. Anushree Halder

DATE OF JUDGMENT: 26/08/2003

BENCH:

N. SANTOSH HEGDE & B. P. SINGH.

JUDGMENT:

JUDGMENT

(Arising out of Special Leave Petition (Crl.) No.4047 of 2002)

B.P. SINGH, J.

Leave granted.

The appellant herein is the husband of the respondent.

He has preferred this appeal against the judgment and order

of the High Court of Judicature at Calcutta in CRR No. 973

of 2001 dated 26.11.2001 whereby the High Court while

allowing the Revision Petition preferred by the respondent

directed the appellant to pay a sum of Rs.1500/- per month

by way of maintenance to the respondent and also to pay

costs of Rs.2000/-. While doing so it set aside the order of

the Judicial Magistrate, First Class, Sealdah dated

15.12.2000 passed on the application filed by the respondent

under Section 125 Cr. P.C., in so far as the learned

Magistrate refused the prayer of the respondent for grant of

maintenance to her. The learned Magistrate, however, had

directed the appellant to pay a sum of Rs.1500/- per month

for the maintenance of his son who was residing with the

respondent.

It is not in dispute that the appellant and the

respondent got married on 24th February, 1985. A son was

born to them on 14th January, 1987. They continued to live

together for many years at different places around the city of

Calcutta. On 11th March, 1997, the respondent left her

matrimonial home along with her son and came to reside

with her parents in Calcutta. According to her, she was

tortured over the years by the appellant and ultimately on

11th March, 1997, the appellant forced her to leave her

36

matrimonial home and threatened her with dire

consequences if she did not do so. For fear of her life and

the life of her son she was compelled to leave the

matrimonial home on that day. Only 4 days later, on 15th

March, 1997, she filed an application under Section 125

Cr.P.C. claiming maintenance for herself and her son.

In her application the respondent alleged that within

15 days of the marriage the appellant started torturing her

both mentally and physically on account of the fact that the

appellant was not satisfied with the meagre dowry brought

by her and also on account of the fact that her appearance

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appeared to the appellant to be ugly. According to the

respondent, the appellant is quarrelsome by nature and he

had the habit of causing annoyance and disturbances to her

for petty reasons. He did not give her the respect due to a

wife and treated her like a maid servant. She tolerated the

cruel treatment meted out to her for many years but

ultimately when she was threatened on 11th March, 1997 by

her husband, she had no option but to leave her matrimonial

home out of fear. She was thereafter forced to live with her

parents. She further stated that her husband was a bank

employee drawing a salary of about eight to ten thousand

rupees per month while she had no source of income. She,

therefore, claimed a sum of Rs.1500 each by way of

maintenance for herself and for her son, and also claimed

costs.

In reply, the appellant stated that he had not

demanded any dowry at the time of marriage nor was any

dowry given. Some gifts were no doubt given to him as well

as his wife which were in the custody of his wife. He did

not torture her nor did he ever misbehave with her for the

reason that she had brought a meagre dowry or that she was

not good looking or for any other reason. However, since

May, 1996 his mother-in-law as well as his wife started

insisting that he should shift his residence to Calcutta. They

picked up a quarrel with him on this issue and in the process

they even abused him. The brother of the respondent and

some others who had come to his house assaulted him,

which compelled the appellant to lodge a report with the

police. After lodging of the report the behaviour of his wife

and mother-in-law became worse, so much so that the

respondent had mixed some poisonous substance in his

37

drinking water after consuming which the appellant fell ill.

He had lodged a General Diary Entry No.207/97 at the local

police station. He denied the allegations made in the

application and stated that on 11th February, 1997, the

respondent had gone away with her mother along with her

son and came back only on 16th February, 1997. They were

still insisting on the appellant shifting to Calcutta and on his

refusal to do so he was assaulted for which he had lodged a

complaint at the local police station. On 11th March, 1997,

the respondent with her son left on her own after their son

completed his school examination on that day. She left the

home without his consent and during his absence. She did

so on her own without any justifiable cause and only to

compel him to shift his residence to Calcutta. He was still

willing to live with her.

Before the learned Magistrate the respondent

examined three witnesses namely, herself PW-1, her

mother as PW-2 and a bank employee PW-3. On the other

hand, apart from examining himself as OP W-1, the

appellant examined eight other witnesses to prove that he

had never treated the respondent with cruelty, and also to

prove the complaints lodged with the police and some

letters.

The learned Magistrate after examining the evidence

on record came to record the following findings :-

1. There is no evidence to prove that the appellant

ever demanded dowry from the parents of the respondent

before marriage or even after marriage. Even PW-1 did not

state that he had ever demanded dowry but only stated that

he was not happy with the gifts given. Even her mother,

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PW-2 had to admit that the appellant never demanded dowry

but added that he expected dowry. The case, therefore, set

up by the respondent that on account of meagre dowry the

respondent was being harassed was not true. There was not

an iota of evidence of the fact that the appellant had at any

stage even after his marriage demanded any specific article

which was not given to him as a result of which he had

started torturing his wife. No letter was produced to prove

that the respondent ever wrote to anyone in the course of

twelve years complaining about the ill treatment given by

the appellant.

2. Though in the complaint the respondent alleged

38

that the appellant started torturing her within 15 days of their

marriage, according to PW-2, the mother of the respondent,

she came to know about the ill treatment of his daughter 5 to

6 years after the marriage. On the other hand in her

complaint to the police Ex. 1, PW â\200\2231 stated that she told her

parents about her being tortured by the appellant 8 years

after the marriage. All this shows that the allegations made

by the respondent about her ill treatment at the hands of the

appellant was not true.

3. Though the evidence disclosed that the parties

lived at different places around Calcutta during the period of

twelve years after marriage, no witness was examined by the

respondent to prove that she had been subjected to torture

and cruelty at the hands of the appellant.

4. As regards the second reason namely, the ugly

appearance of the respondent, though such an allegation was

made in the complaint, in the course of her deposition the

respondent did not utter one word in support of the said

allegation. Even in the police report lodged by her, there is

no allegation that she was being ill treated because of her

ugly appearance.

5. There is no evidence to suggest that in view of

their strained relationship any effort was made by the

parents or other relatives to settle their dispute and to effect

a conciliation. It appeared that the father had no say in the

matter, and he was not even examined as a witness to

support the case of the respondent.

6. Though the respondent asserted that she had

made several complaints to the police regarding her ill

treatment by the appellant no such report was proved. The

only report proved, Ex. 1 was lodged after the respondent

had left the matrimonial home.

7. Even the testimony of the respondent proves

that they regularly visited hill stations and other places of

interest on holiday trips, sometimes accompanied by the

relatives of the respondent. She also admitted that the

respondent while talking to others used to give credit to the

respondent for the good performance of their son in his

studies. She also admitted that she completed her B.A. after

marriage while living with the appellant. These facts

disclosed a normal marital relationship and the allegations of

torture and harassment did not appear to be true.

39

In view of these findings the learned Magistrate came

to conclusion that the respondent had left her matrimonial

home on her own and that she was not compelled by the

appellant to leave her matrimonial home, nor had he

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threatened the respondent with dire consequences if she did

not leave his house. There was no ground for the respondent

to apprehend that if she lived with the appellant her life

would be in danger and that she will be subjected to torture

or cruelty. In sum and substance she had no justifiable

reason to desert the appellant. The fact that the application

for grant of maintenance was filed within four days of her

leaving her matrimonial home without any effort for

reconciliation, was also significant. The learned Magistrate

therefore held that the respondent having left her

matrimonial home without any justifiable ground was not

entitled to the grant of maintenance. However, since her son

was residing with her, the appellant was liable to pay

maintenance for his son. He, therefore, ordered that the

appellant shall pay a sum of rupees 1500 per month by way

of maintenance to his son.

Aggrieved by the order of the learned Magistrate the

respondent preferred a Revision Petition before the High

Court of Calcutta. A learned Judge of the High Court by his

order dated 26th November, 2001 allowed the Revision

Petition and directed the appellant to pay a sum of Rs.1500/-

per month to the respondent also for her maintenance from

the date of filing of the maintenance case and also awarded

costs. The judgment and order of the High Court leaves

much to be desired. The sole virtue of the judgment

appears to be its brevity. The learned Judge allowed the

Revision Application and set aside the order of the learned

Magistrate without even noticing the findings recorded by

the Magistrate, nor is there any discussion in the judgment

of the evidence on record. The only relevant observation in

the judgment is the following :-

” I have perused the evidence of P.W.1 (the

Petitioner herself) and the evidence of PW 2, her

Mother and I find that the Petitioner could prove

her case quite properly. It transpires from the said

evidence that the Petitioner had sufficient reason

for staying away from her matrimonial home as

she was subjected to torture and neglect. On the

40

contrary, the evidence of the Opposite Party was a

feeble attempt to ward off the allegations made

against him and were not quite convincing. The

evidence of O.P.W. No. 2 who went to make

payment pursuant to the directions of O.P.W. No.

1 does not also appear to be quite convincing. The

evidence of O.P.W. No. 3 in whose house the

Opposite Party has been residing was the Father of

his friend further appears to have been tuned to

suit the case of the Opposite Party. So, also the

evidence of Opposite Party No. 4.

Accordingly, I am of the view that the

finding of the learned Magistrate refusing the

prayer of the Petitioner for maintenance cannot

stand and she is entitled to an order of maintenance

as otherwise she has been able to prove her case

and the finding of the learned Magistrate that she

“has left the house of O.P. without any just ground

and has not been succeeded to establish the

apprehension of danger to her life she is not

entitled to get maintenance from the O.P.” cannot

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be accepted.”

The appellant has impugned the aforesaid judgment of

the High Court before us. We had summoned the parties to

explore the possibility of a conciliation but counsel for the

parties informed us that the respondent was not willing to

live with the appellant.

Learned counsel for the appellant submitted before us,

and with justification, that the judgment and order of the

High Court does not disclose application of mind to the

evidence on record, or to the findings recorded by the Trial

Court, which were sought to be set aside by the impugned

judgment and order. The finding of the High Court is as

vague as it can be and it is not possible to cull out the

reasons which persuaded the learned Judge to set aside the

findings recorded by the Trial Court. We have earlier

quoted the relevant part of the judgment which justifies the

criticism of the learned counsel. It is well settled that the

Appellate or Revisional Court while setting aside the

findings recorded by the Court below must notice those

findings, and if the Appellate or Revisional Court comes to

the conclusion that the findings recorded by the Trial Court

41

are untenable, record its reasons for coming to the said

conclusion. Where the findings are findings of fact it must

discuss the evidence on record which justify the reversal of

the findings recorded by the Court below. This is

particularly so when findings recorded by the Trial Court are

sought to be set aside by an Appellate or Revisional Court.

One cannot take exception to a judgment merely on the

ground of its brevity, but if the judgment appears to be

cryptic and conclusions are reached without even referring

to the evidence on record or noticing the findings of the

Trial Court, the party aggrieved is entitled to ask for setting

aside of such a judgment. In normal course we would have

remanded the matter to the High Court for a fresh

consideration of the evidence on record, but having regard to

the nature of the dispute, we do not consider it necessary to

prolong the proceeding any further, particularly when the

evidence has been placed before us, and with the assistance

of counsel appearing for the parties we have gone through

the evidence on record. We, therefore, proceed to consider

the evidence on record and dispose of the matter finally.

The respondent was examined as PW-1. In her

deposition, she stated that within 15 to 20 days of the

marriage the appellant started ill treating her without any

reason and even went to the extent of slapping and kicking

her. This was because the articles gifted to them were not to

his liking and he needed more. He used to quarrel with her

for petty reasons and assaulted her on many occasions even

though he did not arrange for her food and clothing. Many a

times he drove her away from his house after assaulting her

and she used to come to her father’s house for shelter.

However, her parents used to persuade her to go back to the

appellant. All this her husband did because of greed. She

referred to the police reports that she lodged, but they were

not produced before the Court. She admitted that the

appellant had taken an agency of Unit Trust of India in her

name and for that purpose he had a joint account with her in

the bank.

We may only notice at this stage that there is not even

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a whisper by the respondent about the second ground

mentioned in the application namely that the appellant

disliked her on account of her ugly appearance. She has

referred to a few incidents which resulted in her lodging

42

reports before the police and her treatment in a hospital, but

no evidence was produced to prove such facts nor have the

particulars been mentioned by her. She, however, admitted

that she passed her B.A. after her marriage while she was

living with her husband. She also admitted that she and her

husband often went to different places such as Shimla,

Nainital, Kousani etc. every two years. Some photographs

were shown to her from which it appeared that on some

occasions her elder sister and brother-in-law accompanied

them. She also admitted in the course of her crossexamination

that her husband used to praise her before

others and give her credit for the good performance of her

son in studies. He used to say that their son performed well

because of the care bestowed by her. She also admitted that

she attended Yoga classes while at Dum Dum. She also

admitted that when she was taking the B.A. examination her

husband used to accompany her to the examination center.

She stated in her deposition that she was often assaulted

and was made to leave the matrimonial home and had to

seek shelter in the house of her parents but she has not stated

when she first informed her parents about such behaviour of

the appellant. There is only some indication in the

complaint Ex. 1 lodged by her after she left her matrimonial

home wherein she had stated that she had told her parents

about the behaviour of the appellant about eight years after

her marriage. According to PW-2, her mother, the

respondent had told her about such facts some 5 to 6 years

after marriage. No letter written by the respondent to

anyone has been produced to prove that she had ever

complained to anyone about her ill treatment. In substance

there is no evidence of contemporaneous nature to

substantiate the allegations regarding ill treatment of the

respondent. The only complaint which has been brought on

record is the General Diary Entry Ex. 1 recorded on 12th

March, 1997, that is, after she left her matrimonial home.

PW-2, the mother of the respondent deposed in

support of the application. She also stated that her son-inlaw,

namely the appellant, was not satisfied with the items

gifted at the time of marriage since these were not to his

liking and that is why he tortured her daughter who had told

her about such incidents. She, however, admitted that it was

only 5 or 6 years after the marriage that she came to know

43

that her daughter was being tortured. It appears rather

surprising that if such occurrences took place at regular

intervals, and started within 15 days of the marriage, the

mother of the respondent would have come to know about it

5 or 6 years after the marriage. However, in the General

Diary Entry got recorded by PW-1 she had stated that she

told her mother about such occurrences eight years after

their marriage. There is nothing in the evidence of PW-2 to

support the case that the appellant ever demanded dowry.

On the other hand PW-2 admitted that the appellant never

demanded any dowry even after marriage, but added that

though he never made any demand it was in his mind. From

the evidence on record it appears that the gifts given at the

time of marriage were the usual gifts which are given on

such occasions such as bed, almirah, dressing table, watch,

tape recorder and ornaments for the bride. There is no

evidence whatsoever on record to suggest that before the

marriage, at the stage of negotiations, any demand was made

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or any particular amount or thing was asked for by the

appellant.

On the other hand the appellant has examined himself

as OPW â\200\2231 and denied all the allegations made against him.

He asserted that he had never demanded any dowry at the

time of marriage or thereafter. In fact his relatives and

friends knew that he was in principle against the dowry

system. There was, therefore, no question of his torturing

his wife for not bringing sufficient dowry or for not being

happy with the gifts brought by her. He asserted that he

took good care of his wife and even after marriage he

permitted her to continue her studies and she obtained her

B.A. degree after marriage. He had a joint account with her

which she could operate and he had secured an agency of

Unit Trust of India for her so that it could keep her engaged.

On the contrary, he stated that it was in the year 1996 that

some untoward incident took place and that was because his

mother-in-law as well as the respondent insisted that he

should shift his residence to Calcutta. About such incident

he lodged a report at the police station. He further stated

that on 11.2.1997 the parents of respondent had come to his

house and asked him to live in their house or to take a rented

house near their house in Calcutta. After some argument

they went away. Again on 16th February, 1997, they came

44

and threatened him that they will take away their daughter

and grandson. An incident took place on that day also,

details of which have been disclosed by him. He also stated,

as was stated by PW-1, that after marriage they frequently

visited many places of interest to them. On the first

marriage anniversary he gifted a Guitar to his wife. In the

year 1986 they went together to Varanasi, Lucknow,

Allahabad. In 1988 they went to Shillong, Guahati, Kamrup

etc. and in 1990 they went to Nainital, in 1993 to

Panchmarhi, Patni, Jabalpur etc. They had gone to Shimla,

Kulu, Manali in 1995. Some photographs were produced

which were taken when he and his wife had visited such

places. The appellant also examined witnesses to prove that

he and his wife enjoyed cordial relationship and this fact

was known to relatives and family friends. He examined

witnesses to prove that while they were together there was

no disturbance in their family life and their relationship was

cordial. The witnesses also support his case that even after

the respondent left his house he had sent his friends to her

with money for her necessary expenses. OPW-2, is a family

friend. He deposed that he had attended the function when

the appellant and respondent got married. He also stated

that he did not find any disturbance in their family life but

he came to know about it in mid 1997. He had once gone to

pay cash to the respondent but the respondent did not accept

it. OPW-3, is a landlady of the appellant. According to her

the appellant took care of his wife and son and did not

torture her even though the respondent was not very

obedient.

Surprisingly, to this witness a suggestion was made

by the cross â\200\223examining counsel that the appellant was in

love with her daughter-in-law and that is why he used to go

to her house. This was of course stoutly denied by OPW-3.

This fact has been noticed by the learned Magistrate but

counsel for the respondent in the course of his argument

before the Magistrate did not pursue this line any further and

stated that the respondent had no grievance about the

character of the appellant. We are surprised that counsel for

the respondent put such a question to the witness when such

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was not the complaint in the application under Section 125

Cr. P.C. nor had the respondent as PW-1 or her mother as

PW-2 stated anything to the effect that the appellant had an

45

affair with any other lady. Without there being any basis in

the pleadings, or even in the evidence examined by the

applicant, the learned Magistrate should not have permitted

such a question to be put to the witness, particularly when it

reflected not only on the character of the appellant but also

on another lady who was not a party to the proceeding. In

our view, learned Magistrate was remiss in permitting such a

question to be put to the witness and in recording the answer

given by the witness. He should not have permitted such

matters to go on record. This however, discloses the attitude

of the respondent and the extent to which she could go to

malign the appellant and tarnish his image.

OPW-4, is a childhood friend of the appellant and was

present when the negotiation for the marriage took place.

According to him, there was no demand for dowry or any

particular article. After the marriage he used to visit the

house of the appellant and he found that their relationship

was very good. He had also gone two times to the house of

the respondent after she left her matrimonial home at the

behest of the appellant to give some money to her but she

did not accept it. OPW â\200\2236 stated that he was known to the

parties and he had once gone to the house of the father of the

respondent to hand over a letter and some cash and books

etc., but the respondent did not accept them. This witness

also stated that money orders were sent by the appellant to

the respondent.

From the evidence on record we are satisfied that the

findings recorded by the learned Magistrate were fully

justified as they were based on the evidence on record and

appear to us to be reasonable. In her application the

respondent had given two reasons for her ill treatment by the

appellant namely his greed for dowry and that she was not

good looking. So far the second reason is concerned, in the

course of her deposition, the respondent has not said a word

about it. So far as the first reason is concerned, on a careful

scrutiny of the evidence on record, we have also come to the

conclusion that no dowry was ever demanded either before

the marriage or after the marriage. Even PW-2, the mother

of the respondent had to admit that the appellant had never

demanded any dowry or gift. Of course she added that all

this was in his mind. We are, therefore, satisfied that the

Trial Court properly appreciated the evidence on record

46

while recording the finding that there was never any demand

for dowry by the appellant. There was, therefore, no reason

for him to ill-treat his wife for this reason. We, therefore,

find that both the reasons given in the application for her ill

treatment are non-existent.

We have also perused the evidence on record with a

view to ascertain whether for any other reason the

respondent was ill treated by the appellant. We have found

from the evidence on record that the behaviour of the

appellant has been throughout normal. It is admitted by the

parties that they frequently went during vacations to visit

different places. On some occasions they were even

accompanied by the relatives of the respondent. The

appellant permitted the respondent to continue her studies

even after her marriage and that is how she secured her B.A.

degree after marriage. He also arranged an agency of the

UTI to keep her engaged and also opened a joint account in

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a bank which she could operate. All these facts go to

indicate that for several years after their marriage they

enjoyed normal marital relationship. In fact, there is

evidence to show that the appellant used to praise his wife in

the presence of others by complimenting her and giving her

credit for the good performance of their son in his studies.

This even the respondent has admitted in the course of her

deposition. Apart from these we find it difficult to believe

that if the appellant started torturing the respondent within

15 days of the marriage, the respondent would not have

reported this matter at least to her mother. According to her

mother, she came to know about her ill treatment 5 to 6

years after marriage. According to the respondent in her

complaint Ex. 1 she had mentioned about such happenings

to her mother about eight years after her marriage. While

there is reference to reports lodged by the respondent to the

police regarding torture by the appellant, not one such report

has been brought on record which may have been lodged

before the respondent left her matrimonial home. Even

relevant particulars are not disclosed. The only police report

brought on record is one lodged after the respondent left her

matrimonial home. We do not attach much importance to

this report. There is no contemporaneous document in the

form of letters which may have been written by the

respondent to her friends or relatives mentioning about her

47

being subjected to torture or harassment by the appellant.

The respondent being an educated lady, it is difficult to

believe that she would not have written letters to her friends

and relatives during the twelve years that she lived with the

appellant as husband and wife. Apart from her mother, the

respondent has produced no evidence of prove that she was

tortured and harassed by the appellant. The learned

Magistrate also noticed that though they lived at different

places around Calcutta during the period of twelve years

after their marriage, not one witness was examined by the

respondent to prove that the appellant treated the respondent

with cruelty. On the other hand, some witnesses have been

examined by the appellant to prove that they lived a normal

life and there was no question of the respondent being

tortured by the appellant for any reason whatsoever. Even

the other facts which we have found support the case of the

appellant that he had not treated the respondent with cruelty

for any reason whatsoever. Learned counsel for the

respondent laid great emphasis on the observation of the

Magistrate that the appellant being a bank employee leaving

for his work in the morning and returning late in the evening

hardly had any time to ill treat the respondent. No doubt,

there is such an observation in the order of the Magistrate,

but that is not the basis of his findings. Too much emphasis

on such a stray observation in the order is not justified.

We therefore hold that the High Court was not

justified in setting aside the findings recorded by the learned

Judicial Magistrate. We have reached this conclusion after

appreciating the evidence on record since there is no

discussion of the evidence in the judgment of the High

Court. Counsel for the respondent posed before us a

question as a part of his submission as to why the respondent

should leave her matrimonial home without any reason. In

cases where there is a dispute between husband and wife it is

very difficult to unravel the true reason for the dispute.

After separation when the relationship turns sour, all sorts of

allegations and counter allegations are made against each

other. Evidence of contemporaneous nature therefore plays

an important role in such cases as it may reveals the thinking

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and attitude of the parties towards each other at the relevant

time. Such evidence is usually found in the form of letters

written by the parties to each other or to their friends and

48

relatives or recorded in any other document of

contemporaneous nature. If really the respondent was

subjected to cruelty and harassment in the manner alleged by

her, we have no doubt she would have written about such

treatment to her friends and relatives with whom she may

have corresponded. The reports allegedly made by her to

the police may have thrown some light on this aspect of the

matter. Such evidence is completely absent in this case. It

appears to us that the parties lived happily for many years

after the marriage till about the year 1996, whereafter there

was some misunderstanding which ultimately resulted in

their separation. Why this happened, it is difficult to

fathom, but the evidence on record does not convince us that

the respondent was subjected to torture and harassment by

the appellant, and certainly not for the reasons alleged by

her. The Court is not permitted to conjecture and surmise.

It must base its findings on the evidence produced before it

by the parties. The enquiry by the Court is restricted to the

evidence on record and the case pleaded by the parties. It is

not permissible to the Court to conjecture and surmise and

make out a third case not pleaded by the parties only to

answer the query such as the one posed to us.

In the result this appeal is allowed and the impugned

judgment and order of the High Court is set aside.

During the pendency of the proceeding before this

Court it was contended by the respondent that the appellant

had not paid the amount which was payable by way of

maintenance to the son. We had directed the appellant to

pay up the arrears of maintenance and according to the

appellant the amount has been paid. The respondent,

however, has raised some dispute about the amount payable

and according to her some amount is still due. We do not

wish to express any opinion on this dispute and leave it to

the parties to take appropriate proceeding before the

appropriate forum, if so advised.

49

50

51

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54

Supreme Court of India

Sunita Kachwaha And Ors vs Anil Kuchwaha on 28 October, 2014

Author: ………………………..J.

Bench: T.S. Thakur, R. Banumathi

NON-

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2310 OF 2014

(Arising out of SLP (Crl.) No. 2659/2012)

Sunita Kachwaha & Ors. ..Appellants

Versus

Anil Kachwaha ..Respondent

J U D G M E N T

R. BANUMATHI, J.

Delay in filing and refiling SLP condoned and leave granted.

2. This appeal is preferred against the Order dated 26.06.2008 passed by the High Court

of Madhya Pradesh at Jabalpur in Criminal Revision No.2303/2007, in and by which, the

High Court has set aside the order of maintenance of Rs.3,000/- awarded to the wife while

affirming the order of maintenance awarded to the two daughters.

3. Marriage of the first appellant was solemnized with respondent on 5.02.1996 as per

Hindu rites and the spouses are blessed with two daughters. The first daughter Ankita is

aged 12 years and second daughter Akshita is 8 years old as on the date of filing of SLP.

Case of the appellant-wife is that when she was living in the matrimonial house, the

respondent and her in-laws were harassing her on the ground that she has not brought

sufficient dowry. The appellant-wife is alleged to have been subjected to physical and

mental cruelty, demanding car and dowry. As the torture became intolerable, the

appellant-wife had contacted her brothers in the year 2006, and her brothers came to

Kota to take the appellants back on 24.04.2006. The matter was reported to the SHO

55

Police Station, Mahaveer Nagar, Kota about the cruel treatment meted out to the

appellant-wife by the respondent and in-laws.

4. Because of the harassment, it is stated that the appellant-wife could not continue to

reside in the matrimonial house, and the appellant- wife along with her children went to

her parents house at Jabalpur. The appellants claimed maintenance by filing petition

under Section 125 Cr.P.C. before the Second Additional Principal Judge, Family Court,

Jabalpur. Keeping in view the need of the appellants, the Family Court by its Order dated

29.10.2007 directed the respondent to pay Rs.3,000/- per month and Rs.2,500/- per

month to the appellant-wife and to each of the daughters respectively.

5. Aggrieved by the award of maintenance, respondent preferred revision petition

under Section 397 Cr.P.C. before the High Court of Madhya Pradesh, Jabalpur Bench

wherein the High Court has modified the order, disallowing the maintenance to the

appellant-wife and affirming the award of maintenance to the daughters. Aggrieved by

the said order, the unsuccessful wife has preferred this appeal, praying for setting aside

the order of High Court and for appropriate maintenance.

6. We have heard the learned counsel for the appearing parties at length and perused the

materials on record.

7. The High Court has set aside the award of maintenance to the wife on the ground that

the separate stay of the wife due to alleged dowry torture is not justified and that she has

left the matrimonial house without any justifiable ground. As referred to by the Family

Court, in her evidence, the appellant-wife has clearly stated that the respondent and his

mother were physically and mentally harassing her on the ground that she has brought

insufficient dowry. The Family Court referred to the evidence of the appellant at length

and held that she has justifiable ground to stay away from the matrimonial house and the

High Court was not right in interfering with such factual findings and upsetting the

maintenance order.

8. The proceeding under Section 125 Cr.P.C. is summary in nature. In a proceeding

under Section 125 Cr.P.C., it is not necessary for the court to ascertain as to who was in

wrong and the minute details of the matrimonial dispute between the husband and wife

need not be gone into. While so, the High Court was not right in going into the intricacies

of dispute between the appellant-wife and the respondent and observing that the

appellant-wife on her own left the matrimonial house and therefore she was not entitled

to maintenance. Such observation by the High Court overlooks the evidence of appellant-

wife and the factual findings, as recorded by the Family Court.

9. Inability to maintain herself is the pre-condition for grant of maintenance to the wife.

The wife must positively aver and prove that she is unable to maintain herself, in addition

to the fact that her husband has sufficient means to maintain her and that he has

neglected to maintain her. In her evidence, the appellant-wife has stated that only due to

help of her retired parents and brothers, she is able to maintain herself and her daughters.

Where the wife states that she has great hardships in maintaining herself and the

daughters, while her husband’s economic condition is quite good, the wife would be

entitled to maintenance.

56

10. The learned counsel for the respondent submitted that the appellant-wife is well

qualified, having post graduate degree in Geography and working as a teacher in Jabalpur

and also working in Health Department. Therefore, she has income of her own and needs

no financial support from respondent. In our considered view, merely because the

appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in

a position to maintain herself. Insofar as her employment as a teacher in Jabalpur,

nothing was placed on record before the Family Court or in the High Court to prove her

employment and her earnings. In any event, merely because the wife was earning

something, it would not be a ground to reject her claim for maintenance. The Family Court

had in extenso referred to the respondent’s salary and his economic condition. The

respondent is stated to be an Engineer in PHE, Kota. He is in Government service and

according to the pay certificate then produced before the Family Court, he was getting

salary of Rs.20,268/- per month. In her evidence, appellant-wife has also stated that the

respondent owns a very big house of his own in which he is said to have opened a hostel

for boys and girls and is earning a substantial income. She has also stated that the

respondent owns another house at Talmandi Sabji Kota, Rajasthan and is receiving rental

income of Rs.4,500/- per month. Having regard to the salary and economic condition of

the respondent, the Family Court has awarded maintenance of Rs.3,000/- to the wife and

Rs.2,500/- to each of the daughters, in total Rs.8,000/- per month. It is stated that the

maintenance amount awarded to the daughters has been subsequently enhanced to

Rs.10,000/- per month. The maintenance amount of Rs.3,000/- per month awarded to

the wife appears to be minimal and in our view, the High Court ought not to have set aside

the award of maintenance. The learned counsel for the appellants prayed for

enhancement of the quantum of maintenance to the appellant-wife. We are not inclined

to go into the said submission, but liberty is reserved to the appellant- wife to seek remedy

before the appropriate court.

11. The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision

No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay

the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family

Court and also pay the arrears of maintenance payable to the appellant-wife within the

period of eight weeks.

………………………..J.

(T.S. Thakur) ………………………..J.

(R. Banumathi) New Delhi;

October 28, 2014

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