Tag Archives: Maintenance Denied

No maintenance under DV act if DV is NOT proven!! Husband has also won divorce on grounds of cruelty. Himachal HC

The High Court of Himachal Pradesh, in Anil Kumar vs Shashi Bala, has held that if there is no evidence with regard to maltreatment or violence, no order of maintenance can be granted invoking the provisions of the Domestic Violence Act.

In this case, though the appellate court found that no evidence has been brought on record to demonstrate violence, partly allowed the appeal, and held that since complainant has to live and maintain herself and she has no independent source of income, she is entitled to monetary relief under Section 20 of the Act.

On appeal, the high court observed that the complaint nowhere suggests that maltreatment and violence as defined under the Act was ever meted to the complainant.

The court also observed that overwhelming evidence is available on record suggestive of the fact that the complainant herself had left the house.

Observing that the appellate court ‘got swayed by emotions’, the bench presided by Justice Sandeep Sharma said: “Since there was no evidence with regard to maltreatment or violence, learned appellate Court below ought to not have granted any amount on account of maintenance.”

**

 

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CrMMO No. 30 of 2011

Decided on: May 2, 2017

 

Anil Kumar ………Petitioner
Versus
Shashi Bala and others …Respondents

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

For the petitioner: Mr. Ajay Sharma, Advocate.
For the respondents: Mr. Adarsh K. Vashishta, Advocate, for respondent No.1
Mr. Parveen Chandel, Advocate, for respondents No.2 and 3.

 

Sandeep Sharma, J. (Oral)

Delinked from FAO(HMA) No. 205 of 2011.

(2). Instant petition filed under Section 482 CrPC is directed against judgment dated 4.12.2010 passed by Additional Sessions Judge, Fast Track Court, Hamirpur in Criminal Appeal No. 30 of 2009, reversing judgment dated 24.3.2009 passed by Judicial Magistrate 1st Class, Court No. III, Hamirpur in Domestic Violence Complaint No. 2-1 of 2009, whereby application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter, ‘Act’), having been filed by respondent No.1-complainant (‘complainant’, hereafter), came to be dismissed.

(3). Briefly stated the facts as emerge from the record are that the complainant preferred an application under Section 12 of the Act alleging therein that she was married to appellant-Anil Kumar as per Hindu rites and customary ceremonies on 17.6.2003 and two children were born out of said wedlock. Complainant further averred that she was turned out by her in-laws. Complainant further claimed that after being ousted from the house, she remained in her parents’ house for eight months and came back on 22.11.2008, when her father-in-law did not allow her to enter the house. After two days, she went back to her parents’ house. On 14.12.2008, when she again came back, she was taken out of the room and was not allowed to meet her children. Complainant further alleged that false allegations have been leveled against her. She further complained that on 23.12.2008, all of her family members had left the house by locking it and since then she had been residing in her courtyard and bathroom respectively. Her husband had also gone away with other family members. In the aforesaid background, Complainant prayed for providing protection under Sections 18, 19, 20 and 21 of the Act.

(4). Petitioner alongwith proforma respondents No.2 and 3, by way of reply, refuted the aforesaid claim of the complainant and stated that false and frivolous application has been moved by the complainant to put undue pressure as well as to cause harassment to them. However, petitioner admitted the complainant to be his legally wedded wife but specifically stated that she developed illicit relations, as a result of which, divorce petition has been filed. As per petitioner, despite repeated requests, complainant failed to mend her ways and, on 23.6.2008, was caught red-handed. Petitioner specifically denied allegations of maltreatment and claimed that all the basic necessities of life were provided to the complainant when she remained with him. With the aforesaid submissions, petitioner claimed that the complainant is not entitled to the reliefs as claimed in the application.

(5). Complainant, by way of rejoinder, reasserted her claim as put forth in the complaint and specifically denied the allegations as contained in the reply having been filed by the respondents.

(6). Learned trial Court, on the basis of pleadings adduced on record by the respective parties, framed following questions, for determination:

“1. Whether the applicant is entitled for protection and relief as claimed in the application? If so, to what extent?

2. Final Order.”

(7). However, the fact remains that learned trial Court, on the basis of evidence adduced on record by the respective parties, came to the conclusion that there is no merit in the application having been filed by the complainant and accordingly, rejected the same.

(8). Being aggrieved by and dissatisfied with the rejection of aforesaid application, complainant preferred an appeal under Section 29 of the Act before Additional Sessions Judge, Fast Track Court, Hamirpur, which came to be registered as Criminal Appeal No. 30 of 2009. Learned appellate court below, while partly accepting the appeal filed by the complainant, quashed and set aside order dated 24.3.2009 and held complainant entitled to maintenance allowance of Rs.1,000/- per month, from the date of order. At this stage, it may be noticed that while passing aforesaid judgment, learned appellate court specifically concluded that no evidence has been led on record by the complainant to prove serious allegations as leveled against the respondents in the complainant. The court below further concluded that no evidence has been brought on record to demonstrate violence, if any, by the respondents and accordingly, held her not entitled to protection, residence and custody order in her favour. Learned appellate court below, while partly allowing appeal, held that since complainant has to live and maintain herself and she has no independent source of income, she is entitled to monetary relief under Section 20 of the Act.

(9). Mr. Ajay Sharma, learned counsel representing the petitioner, while referring to the impugned judgment passed by court below, vehemently argued that same is not sustainable in the eyes of law, as such, same deserves to be quashed and set aside. While inviting attention of this Court to impugned order passed by court below, Mr. Sharma, strenuously argued that once learned Court below had come to the conclusion that no evidence worth the name has been led on record by the complainant, to prove violence, if any, against her by the petitioner and his family members, there was no occasion, whatsoever, to provide maintenance of Rs.1,000/- per month. Mr. Sharma, also invited attention of this Court to the evidence led on record by the complainant in support of her complaint filed before learned trial Court, to demonstrate that there is no illegality or infirmity in the order of learned trial Court, whereby it has rightly come to the conclusion that complainant has not been able to prove contents of application, so as to make herself entitled to reliefs under. Sections 18, 19, 20 and 21 of the Act. Mr. Sharma, further contended that earlier, complainant had filed divorce petition against petitioner leveling serious allegations of sexual harassment against his father but same was later on withdrawn. Mr. Sharma also invited attention of this Court to the decree of dissolution of marriage passed by matrimonial court in the petition having been filed by the petitioner, wherein allegations with regard to illicit relations of complainant with one Jeet Ram, stood duly proved. In the aforesaid background, Mr. Sharma, prayed that impugned order passed by learned appellate Court below may be set aside and that of learned trial Court be restored.

(10). Mr. Adarsh K. Vashishta, learned counsel representing the complainant, supported the impugned judgment passed by learned appellate Court below. Mr. Vashishta while refuting aforesaid contentions having been made by the learned counsel representing the petitioner, stated that there is no illegality or infirmity in the judgment passed by learned Court below, wherein he has specifically come to the conclusion that since complainant has to live and maintain herself, and she is having no independent source of income, she is entitled for monetary relief under Section 20 of the Act.

(11). He also contended that a very meager sum of Rs.1,000/- per month has been awarded by the learned Court below as such, there is no scope of interference, specifically in view of the fact that it stands duly proved on record that respondent-complainant is legally wedded wife of petitioner and it is/was his bounden duty to maintain her during subsistence of their marriage. Mr. Vashishta also made this Court to travel through evidence led on record by the complainant before learned trial Court, to suggest that learned trial Court miserably failed to appreciate evidence in its right perspective, as a result of which, erroneous findings have come on record, which were later on rectified in accordance with law, by the learned appellate Court below, in the appeal having been filed by the complainant. In the aforesaid background, Mr. Vashishta, prayed for dismissal of petition.

(12). I have heard the learned counsel representing the parties and also gone through the record very carefully.

(13). Before adverting to the genuineness and correctness of the impugned order passed by appellate court below as well as submissions of learned counsel representing the parties, it may be noticed that marriage of petitioner with complainant stands dissolved on the ground of cruelty, as is evident from decree passed by learned District Judge in HMA No. 18 of 2008, on 3.3.2011, whereby matrimonial court, while accepting petition filed by the petitioner has dissolved marriage on the ground of cruelty. It may also be stated at this stage that aforesaid judgment having been passed by matrimonial court was laid challenge before this Court by way of FAO No. 205 of 2011, which came to be decided by this Court on 2.5.2017. This Court, vide aforesaid judgment, while dismissing appeal having been preferred by the complainant, has upheld the decree of dissolution of marriage passed by matrimonial court.

(14). This Court, solely with a view to ascertain the perversity, if any, in the impugned judgment passed by appellate court, carefully perused pleadings as well as evidence adduced on record by the respective parties, perusal whereof certainly compels this Court to agree with the contentions raised by learned counsel representing petitioner that learned appellate Court below has failed to appreciate evidence adduced on record by respective parties in its right perspective, as a result of which, erroneous findings have come on record. Bare perusal of impugned judgment passed by learned appellate Court below itself suggests that even appellate court was not convinced of evidence led on record, which could make complainant entitled for protection as claimed by way of application under Section 12 of the Act. Learned appellate Court below, in para 16 of the impugned judgment has categorically stated that from the record, it appears that serious allegations had been leveled against complainant and no evidence had been brought for providing maintenance and as such she was not held entitled to protection, residence and custody order in her favour. It has also come in the judgment passed by learned Court below that no violence, if any, on the part of petitioner was proved. While granting compensation of Rs.1,000/- per month, in favour of the complainant, learned appellate Court below took into consideration status of complainant, who admittedly had to live and maintain herself and she had no independent source of income. But, if evidence led on record by the complainant before learned trial Court, to prove contents of her application under Section 12 of the Act, is seen and perused carefully, it nowhere suggests that maltreatment and violence as defined under the Act was ever meted to the complainant. There is no specific allegation, if any, of beatings given by husband or family members, rather there is bald statement of complainant (AW-1) that she was maltreated but no specific instance as such has been reported with regard to violence, if any, done on her by the respondents. Father of the complainant (AW-3) namely Bihari Lal has also not stated anywhere anything specific with regard to violence, if any, committed by petitioner or his family members. Apart from above, no independent witness, if any, from locality was associated to prove allegations of maltreatment and violence in terms of provisions contained in the Act. As far as allegations with regard to throwing complainant from the house are concerned, there is evidence led on record by the petitioner, that complainant left the house at her own, after being caught red handed with one Jeet Ram, with whom, she had illicit relations (as stood proved in the divorce petition). All the witnesses of the respondent have stated that complainant left the house to answer call of nature and never turned up thereafter.

(15). This Court, after having bestowed its thoughtful consideration to the pleadings available on record, has no hesitation to conclude that appellate court below, while granting maintenance of Rs.1,000/- to the complainant got swayed by emotions and completely ignored overwhelming evidence available on record suggestive of the fact that complainant herself had left the house. Since there was no evidence with regard to maltreatment or violence, learned appellate Court below ought not have granted any amount on account of maintenance. Moreover, as has been noticed above, marriage between the parties has been dissolved vide judgment dated 3.3.2011, which has been further upheld by his Court and as such, this Court sees no force, much less substantial, in the complaint of the complainant, which was rightly rejected by the learned trial Court.

(16). Consequently, in view of above, judgment dated 4.12.2010 passed by Additional Sessions Judge, Fast Track Court, Hamirpur in Criminal Appeal No. 30 of 2009 is set aside and judgment dated 24.3.2009 passed by Judicial Magistrate 1st Class, Court No. III, Hamirpur in Domestic Violence Complaint No. 2-1 of 2009 is upheld.

However, keeping in view the fact that instant petition under Section 12 of the Act remained pending adjudication till passing of decree of dissolution of marriage i.e. wherein allegations with regard to illicit relationship of complainant stood proved, this court deems it fit to grant/award of Rs.10,000/- to the complainant, to be paid by the petitioner, within a period of eight weeks from today, as maintenance under Section 12 of the Act.

(17). The petition stands disposed of accordingly. Pending applications, if any are also disposed of. Interim directions, if any, are also vacated.

 

(Sandeep Sharma)
Judge

 

 

May 2, 2017
(Vikrant)

 

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Indian wife demands Rs. 40,00,000 just after 25 day marriage! High Court dismisses her claim & says “…The entire claim of wife only to harass husband…”

Woman loses alimony over matrimony profile

Woman loses alimony over matrimony profile
Posts on the matrimonial website contradicted her claim of being unemployed, with an aged grandfather to take care of

A woman who filed a claim for alimony a year after divorce lost the case due to her online claims. Her profile on a matrimonial webiste showed a different set of facts than what she had claimed in the petition for alimony.

The woman is 29 now and her ex-husband, 34. They were married in 2012. The new bride returned to her parents just 25 days after marriage. She was allegedly under stress and depression and was being treated for it. After several failed attempts to lead a married life with her, the husband filed a petition for divorce on grounds of cruelty in 2015. In August 2016, a family court dissolved the marriage.

A little over a year later, the woman filed an appeal against the divorce in the High Court (HC). She also filed a petition before the family court seeking a permanent alimony of Rs 40,00,000. She claimed that the husband worked as a manager in a private bank and also ran a business. She claimed to be unemployed and said she had to take care of her 90-year-old grandfather. Her petition was dismissed by the family court after which she filed an appeal in the HC. Both her cases, one for alimony and the other challenging the divorce, was before the HC.

The HC dismissed her claim for alimony on the grounds that she had a better income than her husband.

The husband contended that she held a masters degree in business management and was drawing a monthly salary of Rs 45,000. She had also recently sold agricultural land for Rs 81 lakh and was well off and did not require alimony.

The court said, “Admi-ttedly, they spent life together as husband and wife only for about a period of 45 days. That also is a serious fact to be considered, while considering the application seeking maintenance.”

Dismissing her plea for alimony the HC said, “There is absolutely no material to indicate that the appellant/wife is hapless and had no income. On the contrary, she appears to be having more sources of income than the husband. She has even profiled herself on the Internet proclaiming that she has an income of Rs 1 to Rs 2 lakhs per annum, that her grandfather is in a fit state of health and he is practicing as a chartered accountant.”

The reasons she cited for the delay of one year in filing the appeal against the divorce decree was the death of her mother and the deteriorating health of her grandfather.
The HC in its order noted that the appeal against the divorce and the petition for alimony were filed on the same day. So, her contention that she was under shock and therefore delayed in filing the appeal could not be accepted. Her mother had died in 2011, more than a year before her wedding. So, the delay for filing the appeal against the divorce could not have been that death.

Dismissing her appeal against the divorce the HC said, “We tried our best to satisfy ourselves that there should be some reason, at least, in order to condone the delay. We are unable to find any reason at all. On the contrary, we are disturbed by the manner in which contentions have been pleaded which runs absolutely contrary to the very case of the wife herself. It appears that the wife has not come to the court with clean hands.”

The HC also noted that “The entire claim of the wife appears to be only to harass the husband. Therefore, we find no good ground to interfere with the impugned order.”

Educated #woman cannot be #Parasite !! #Famous #Delhi District court : Ms. Parveen Raza vs Syed Intekhab Ali

/////10. The appellant herself is a well educated lady having post graduation degree i.e. MA, B. Ed. and LL.B. and is reported to be more qualified than the respondent. She can earn herself on her own. She is not supposed to sit idle at home and be parasite on the earnings of respondent./////

Though this judgement is hailed in MANY quarters, please note that the husband has been asked to pay Rs 5000 p.m. with 10% enhancements in following years, so this is NOT a zero maintenance case

The key issues here are that (a) the wife sought Rs 25000 p.m. but failed and (b) the court dealt with the wife’s qualifications …so PLEASE USE THIS order with caution !!

 

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Delhi District Court

Ms. Parveen Raza vs Syed Intekhab Ali on 17 March, 2017

IN THE COURT OF SHRI RAJ KUMAR TRIPATHI

ADDL. SESSIONS JUDGE­02 : SOUTH EAST

SAKET COURT : NEW DELHI

IN RE: Criminal Appeal No.204410/16
ID No.DLSE01­004414­2016

Ms. Parveen Raza
W/o Syed Intekhab Ali
D/o Late Sh. M.Y. Salim Raza
R/o H.No.82, COT, GF,
Nizamuddin West,
New Delhi . . . . Appellant
Through : Shri Dalip Singh,
Advocate

versus

Syed Intekhab Ali
S/o Dr. Anwar Ali
R/o 915, Haveli Azam Khan,
Gali No. Mochiyan,
Delhi ­110006
. . . . . Respondent
Through : Shri A.H. Khan, Advocate


Date of Institution : 11.09.2015

Date when arguments were heard : 20.02.2017 & 14.03.2017

Date of Judgment : 17.03.2017

CA No.204410/16

 

JUDGMENT :

  1. 1. The present appeal filed by appellant under section 29 of The Protection of Women from Domestic Violence Act, 2005 (in short ‘The PWDV Act’) seeks to challenge order dated 27.03.2015 passed by learned Metropolitan Magistrate (in short MM), Mahila Court, South East District, Saket Courts, New Delhi in CC No.6/2/12 Police Station Hazrat Nizamuddin titled as “Parveen Raza Vs. Syed Intekhab Ali”.
  2. 2. Appellant had filed complaint under section 12, 18, 19 and 20 of The PWDV Act before the court of learned MM. Alongwith her complaint, she also filed an application for seeking interim relief for maintenance. The application of appellant was decided by learned MM vide order dated 10.06.08. Learned MM was pleased to direct the respondent to pay interim maintenance of Rs.5,000/­ per month of appellant from the date of filing of the petition. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  3. 3. Both the parties, feeling aggrieved by order of learned MM dated 10.06.08, challenged the same in appeal. The appeals preferred by both the parties was heard by learned Appellate Court and was disposed off vide common judgment dated 06.02.10. The appeal preferred by both the parties was dismissed being devoid of merit.
  4. 4. Thereafter, appellant filed an application before the court of learned MM for seeking enhancement / modification of order dated 10.06.08 in the maintenance amount. In her application, the appellant CA No.204410/16 Page 2 of 6 prayed to enhance the maintenance amount from Rs.5,000/­ to Rs.25,000/­. The application of appellant was decided by learned MM vide order dated 27.03.15. The amount of maintenance was enhanced by 10% every year pending from 2012 till the date of order.
  5. 5. Feeling aggrieved and dissatisfied by the impugned order dated 27.03.2015, the appellant has filed the present appeal.
  6. 6. On notice, respondent appeared through his counsel to contest the appeal. Respondent also filed detailed written reply to the appeal of appellant.
  7. 7. I have heard and considered the submissions advanced by Shri Dalip Singh, learned counsel for appellant and Shri A.H. Khan, learned counsel for respondent and carefully perused the material on record of the case.
  8. 8. Relevant portion of the impugned order is reproduced hereunder for ready reference and for better appreciation of the rival contentions of both the parties:­“Now the complainant has failed to file any document in support of this application to show an increase in the earning capacity of the respondent or an increase in her expenditure. Similarly, the respondent has also failed to place on record any document to show his present earnings. However, this court cannot be oblivious to the realities prevailing in the society and inflation is one such reality. Cost of living has indeed gone up since 2008 and the living standing which could be maintained with Rs.5,000/­ per month in 2008 cannot be maintained with the same amount four years later. Also it is to be kept in mind that unless any specific disability or peculiar circumstances exist, in the normal course of events, the earning capacity of an able bodied person would only increase with time (till of course he becomes physically weak or old). Therefore, an annual increase of 10% in the amount decided in 2008 is certainly warranted considering that the inflation rate varies between 6 to 11% in India as per government statics, which are anyways on the conservative side. Therefore, the application is allowed and the respondent is hereby directed to pay monthly maintenance to the complainant by enhancing it 10% for every year beginning from 2012 till today. It is clarified that only an increase of 10% is allowed per year. Say for instance in 2011 the JD paid Rs.5,000/­ so in 2012 he will pay Rs.5,000/­ + (10% of 5,000) = 5,500/­. Then in 2013 he will pay Rs.5,500/­ + (10% of 5,500) = 6,050/­ and then in 2014 he will pay Rs.6,655/­ and so forth.”
  9. 9. A bare reading of the above order shows that the appellant failed to file any document in the court of learned MM to show that there was an increase in the earning capacity of respondent or there was any increase in her expenditure. Learned MM took note of the practical realities prevailing in the society and taking note of the cost of living in the year 2008 and in the year 2012, was pleased to enhance the maintenance at reasonable rate payable to appellant. Learned MM has rightly observed in her order that inflation rate varies between 6 to 11% in India as per government statics. Therefore, the enhancement of maintenance @ 10% per year is fully justified. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  10. 10. The appellant herself is a well educated lady having post graduation degree i.e. MA, B. Ed. and LL.B. and is reported to be more qualified than the respondent. She can earn herself on her own. She is not supposed to sit idle at home and be parasite on the earnings of respondent.
  11. 11. For the reasons discussed above, I do not find any infirmity or patent illegality or perversity in the impugned order dated 27.03.15 passed by learned MM. The said order is based on sound reasoning. No ground for interference in the order of learned MM is made out. The appeal preferred by appellant lacks merit and same deserves to be dismissed. It is ordered accordingly.
  12. 12. A true copy of judgment along with TCR be sent back to learned trial court concerned. Appeal file be consigned to record room.

Announced in the open court today i.e 17.03.2017

(RAJ KUMAR TRIPATHI)

Addl. Sessions Judge­02
South­East, Saket Courts, New Delhi

source
https://indiankanoon.org/doc/97277940/


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

When a PARAMOUR sought maintenance from his mistress & was denied by AP HC!

A paramour who lived-in with a woman when he was already legally married to another with three other children, tries to file a restitution (RCR – sec 9 HMA) on her !! She seems to have filed a 498a cocktail in response !!. The 498a is quashed because she is NOT the legally wedded wife of that guy. Then this Paramour goes on to file Sec 125 against that woman !!! (yes !) and the lower court seems to have admitted the case. So the wife goes for quashing the case

and the Hon AP HC appreciates the facts and orders “…….When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  1. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. ….”

Well.. court cases are stranger than fiction !!

================================================

Andhra High Court

Smt.Malleshwaramma, … vs G.S.Srinivasulu, … on 15 July, 2016

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY

CRIMINAL PETITION No.6481 OF 2010

15-7-2016

Smt.Malleshwaramma, D/o.K.Venkataiah ..PETITIONER

G.S.Srinivasulu, S/o.Satyanarayana And another …RESPONDENTS

Counsel for Petitioner  :Sri C.M.R.Velu

Counsel for Respondent No.1:Ms.G.Sudha
Counsel for Respondent No.2:Public Prosecutor

HEAD NOTE:

? Cases referred
1.      AIR 1988 SC 644
2.      (2005) 3 SCC 636
3.      2006(2) ALD (Crl.) 493 (AP)
4.      (2014) 1 SCC 188
5.      Keynote address on Legal Education in Social Context delivered at National Law University, Jodhpur on October 12, 2005.
6.      III (2015) DMC 705 (MP)
7.      1982 CRI.L.J. 1022
8.      (2011) 12 SCC 189
9.      Mohabhai Ali Khan v Mohd. Ibrahim Khan, (1928-29) 56 IA 201: AIR 1929 PC 135
10.     (2002) 3 SCC 533
11.     1992 Supp (1) SCC 335
12.     (2009) 3 SCC 78
13.     (1976) 3 SCC 736
14.     (2007) 12 SCC 1

THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY

CRIMINAL PETITION No.6481 of 2010

ORDER:

  1. This petition is filed under Section 482 Cr.P.C., to quash the proceedings in M.C. No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar.
  2. The facts leading to filing of the present criminal petition are as follows: The first respondent herein filed M.C. No.7 of 2010 claiming maintenance of Rs.8,000/- per month from the petitioner alleging that she is his legally wedded wife and the first respondent is unable to maintain himself due to ill health. It is the case of the first respondent that his marriage was solemnized with petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Immediately after the marriage, the petitioner joined with him to lead conjugal life and they were blessed with a daughter by name Srilatha. The petitioner left the matrimonial home of the first respondent along with her daughter at the instigation of her parents. Prior to the marriage, the first respondent helped the petitioner to prosecute her studies and get job in Health department. The first respondent filed O.P. No.72 of 2006 for restitution of conjugal rights on the file of the court of Senior Civil Judge, Mahabubnagar and the same was allowed on 14.11.2007. Basing on the complaint of the petitioner, the Station House Officer, Atchampet Police Station, Mahabubnagar District registered a case in Crime No.30 of 2007 for the offences under Section 498A, 506 and 509 IPC against the first respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  3. The contention of the learned counsel for the petitioner is three fold: (1) the petitioner is not the legally wedded wife of the first respondent; (2) a husband is not entitled to claim maintenance from his wife under Section 125 Cr.PC; and (3) the proceedings against the petitioner are nothing short of abuse of process of law; therefore it is a fit case to quash the proceedings by exercising inherent jurisdiction under Section 482 Cr.PC. Per contra, learned counsel for the first respondent submitted that under Section 125 Cr.P.C., first respondent is entitled to claim maintenance from the petitioner, who is his legally wedded wife. She further submitted that the order passed in O.P. No.72 of 2016 clinchingly establishes that the petitioner is legally wedded wife of the first respondent.

  4. To substantiate the argument, learned counsel for the petitioner has drawn my attention to the following decisions: (i) Smt.Yamunabai Anantrao Adhav v Anantral Shivaram Adhav , wherein the Honble Apex Court held as follows: 8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. (ii) Savitaben Somabhai Bhatia v State of Gujarat , wherein the Honble Apex Court held as follows: 15. .. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the ‘Marriage Act’). : (iii) Buddepu Khogayya v Buddepu Kamalu , wherein this court held as follows: 7. Therefore, the averment itself clearly indicates that there is legally wedded wife to the first respondent by the date of marriage of the petitioner. Hence, she cannot be treated as wife as per the provisions of Section 125 Cr.PC and therefore, she is not entitled for any maintenance.

  5. The learned counsel for the first respondent, while submitting that strict proof of marital relationship is not necessary in proceedings under Section 125 Cr.P.C., relied upon the following decisions: (i) Badshah v Urmila Badshah Godse , wherein the Honble Apex Court held as follows: 13.3. While dealing with the application of a destitute wife or hapless children or parents under this provision (Section 125 Cr.PC), the Court is dealing with the marginalized sections of the society. The purpose is to achieve social justice which is the constitutional vision, enshrined in the Preamble of the Constitution of India.  4. Of late, in this very direction, it is emphasized that the courts have to adopt different approaches in social justice adjudication, which is also known as social context adjudication as mere adversarial approach may special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: It is, therefore, respectfully submitted that social context judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication . (ii) Roshan Singh Nepali v Meena Nepali , wherein the Madhya Pradesh High Court observed as follows: 4. In a proceeding under Section 125 of the Code, the Court is expected to pass appropriate order after being prima facie satisfied about the relation status of the parties. (iii) Aijaz Ahmad Lalri v Smt.Shahjehan Begum , wherein Allahabad High Court held as follows: The proceedings under Section 125, Cr.PC may be akin to civil proceedings, but one important distinction between the two cannot be overlooked, namely, the object behind the enactment of maintenance provisions in the Cr.PC. The crux of the matter always is whether the party claiming maintenance has the means or not. The law of pleading in civil cases may be more strict, but it may not be so when the matter of public policy and its objective are involved. Apart from that, the powers under Section 482 Cr.PC are exercised to secure the ends of justice and to prevent abuse of the process of any law and when the clear finding of fact is that the opposite parties have no means to maintain themselves, the Court will not exercise any such inherent powers in favour of the applicant on account of any defect in pleadings. (iv) Pyla Mutyalamma v Pyla Suri Demudu , wherein the Honble Apex Court held at Para No.1 as follows: Under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.PC for the sole reason that law leans in favour of legitimacy and frowns upon bastardy . But, the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

  6. From the above case law the following principles can be deduced. (1) If a man and woman lived together for such a long time as wife and husband, the wife is entitled to claim maintenance under Section 125 Cr.P.C., notwithstanding establishment of marriage as per the provisions of the Hindu Marriage Act; (2) A man who marries second time by concealing the subsistence of his valid marriage with another woman cannot escape from payment of maintenance to the second wife under Section 125 Cr.PC; 3) A woman who marries a man knowing fully well about subsistence of his valid marriage with another woman is not entitled to claim maintenance under Section 125 Cr.PC. (4) While dealing with the petitions filed under Section 125 Cr.PC prima facie proof of relationship is sufficient to award maintenance.

  7. Let me consider the facts of the case on hand in the light of the above legal principles. Establishment of prima facie relationship of wife and husband is sine qua non to file petition under Section 125 Cr.PC. If the parties to the proceedings under Section 125 Cr.P.C., are Hindus, the claimant has to establish that the marriage with the first respondent is legally valid and their marriage is not hit by Sub-section (1) of Section 5 of the Hindu Marriage Act.

  8. The crucial question that falls for consideration is whether the first respondent is entitled to claim maintenance from the petitioner by filing petition under Section 125 Cr.P.C or not. As per the averments made in the petition (M.C.), the marriage of the first respondent was performed with the petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Basing on the petition averments, one can safely come to a conclusion that the petitioner is the only legally wedded wife of the first respondent. The first respondent filed O.P. No.72 of 2006 on the file of the court of Senior Civil Judge, Mahabubnagar against the petitioner under Section 9 of the Hindu Marriage Act for restitution of conjugal rites and the same was allowed on 14.11.2007. The first respondent is placing much reliance on the order in the O.P. to establish that the petitioner is his legally wedded wife. It is not in dispute that the petitioner did not contest the O.P.; therefore, the court passed the ex parte order. Basing on the complaint lodged by the petitioner, the Station House Officer, Atchampet Police Station registered a case in Crime No.30 of 2007 against the first respondent for the offences under Sections 498A, 506 and 509 IPC. The first respondent obtained anticipatory bail in Crl.P. No.6818 of 2007 on 18.11.2007. For better appreciation of the rival contentions, it is not out of place to extract paragraph No.2 of Crl.P.No.6818 of 2007. 2. As per the said report, the petitioner herein was married and was having three children. He developed contact with her in the year 1994 when she was working at Government Civil Hospital, Perur. They together lived for 10 years at Shadnagar, Mahaboobnagar District and they were blessed with a daughter aged 11 years. It is said that suspecting her character and making wild allegations, he used to abuse her and threaten her saying that he will kill her and her daughter. He also used to abuse on Telephone the staff working in the hospital.

  9. A reading of the above paragraph clearly shows that the first respondent has taken a specific stand that he developed intimacy with the petitioner in the year 1994. If the contents of this criminal petition are taken into consideration, the first respondent did not marry the petitioner. The first respondent also filed Crl.P.No.2745 of 2007 seeking to quash the criminal proceedings against him in Crime No.30 of 2007 on the file of the Station House Officer, Atchampet Police Station. This court, vide order dated 20.7.2007, allowed the criminal petition and quashed the criminal proceedings against the first respondent in Crime No.30 of 2007 for the offence under Section 498A IPC. The relevant observations in the order read as follows: Even if the entire allegations in the complaint are taken as true and correct, they do not go to show that the de facto complainant is the legally wedded wife of the petitioner. At best, it would go to show that the de facto complainant was kept mistress. It is also stated that the petitioner was having wife and three children. The petitioner was harassing her after making her as his second wife. He was suspecting the conduct of the de facto complainant and was abusing her in vulgar language and he also threatened to kill her and her child. Therefore, the allegations do not show prima facie case of the offences under Sections 506 and 509 IPC. Hence, question of quashing the proceedings does not arise. Prima facie Section 498A IPC has no application. Hence, the proceedings are liable to be quashed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  10. This court made an observation that the petitioner is only kept mistress of the first respondent basing on the stand taken by the first respondent in Crl.P. No.2745 of 2007.

  11. Before filing M.C. No.7 of 2010, the first respondent has taken specific stand that he developed intimacy with petitioner in the year 1994 which resulted in the birth of Srilatha. The fact remains that the petitioner was having legally wedded wife before developing contacts with petitioner in 1994. Even as per the case of the first respondent, he was blessed with three children through his first wife. In order to constitute a valid marriage, neither of the partiesif they are Hindusshall have a spouse living at the time of marriage in view of Sub-section (1) of Section 5 of the Hindu Marriage Act.

  12. Having regard to the facts and circumstances of the case and also the principles enunciated in the decisions cited supra, I am unable to accede to the contention of the learned counsel for the first respondent that the petitioner is the legally wedded wife of the first respondent.

  13. Even assuming, but not admitting, that the first respondent is husband of the petitioner, the point to be determined in this case is, whether a husband is entitled to claim maintenance from wife by filing petition under Section 125 Cr.PC. It is not out of place to extract hereunder the relevant portion of Section 125 Cr.PC.

  14. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

  15. The object of Section 125 Cr.PC is to wipe off the tears of destitute wife, hapless legitimate or illegitimate children and parents. The Parliament in its wisdom incorporated Section 125 Cr.PC to achieve the above social object. There is a social and legal obligation on the part of a man to look after the welfare of his wife, legitimate and illegitimate minor children and parents. There is no ambiguity in the language employed in Section 125 Cr.PC.

  16. It is a cardinal principle of interpretation of statutes that the court shall not substitute or omit any of the words used in the statute unless there is ambiguity in it. The court has to interpret the words used in a statute in the context and the purpose for which it is used. In interpreting a statutory provision, the first and foremost rule of interpretation is the literal construction. All that the Court has to see, at the very outset, is what the provision says. If the provision is unambiguous and if, from the provision, the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear.

  17. In Padma Sundara Rao v State of T.N. , the Honble Apex Court in paragraph No.12 (relevant portion) observed as follows: It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.

  18. It appears, the Parliament, in its wisdom, intentionally not included the words husband or spouse after the words his wife and preceding the words unable to maintain in clause (a) of Sub- section (1) of Section 125 Cr.PC; therefore, a husband is not entitled to file application under Section 125 Cr.PC claiming maintenance from the wife. My view is supported by Section 24 of HM Act, which reads as follows: 24 Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this 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 and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the first respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the first respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

  19. A perusal of Section 24 of H.M. Act makes it clear that not only the wife but also the husband is entitled to claim maintenance on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.

  20. After reading Section 24 of H.M. Act and Section 125 Cr.P.C., the court can safely arrive at a conclusion that under Section 125 Cr.P.C., husband is not entitled to claim maintenance from his wife. When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  21. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. (i) In State of Haryana v. Bhajan Lal , the Honble Supreme Court held at clause (7) of paragraph No.102 as follows: (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (ii) In V.Y. Jose v. State of Gujarat , the Honble Supreme Court held at paragraph No.23 as follows: 23. Section 482 of the Code of Criminal Procedure saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. (iii) In State of Karnataka v L.Muniswamy , the Supreme Court observed that the wholesome power under Section 482 Cr.P.C., entitles the High Court to quash proceedings when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (iv) A three-Judge Bench of the Supreme Court in Inder Mohan Goswami v State of Uttaranchal , after examining the scope and ambit of Section 482 of the Criminal Procedure Code, observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be fully justified in preventing injustice by invoking the inherent powers of the Court.

  22. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the considered view that continuation of the proceedings against the petitioner would certainly amount to abuse of process of law. Therefore, it is a fit case to quash the proceedings against the petitioner in order to secure ends of justice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  23. In the result, the criminal petition is allowed, quashing the proceedings in M.C.No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar. Miscellaneous petitions, if any pending in this criminal petition, shall stand closed.

T.SUNIL CHOWDARY, J

July 15, 2016.


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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NO interim maintenance 2 qualified (doctor &498a) wife even IF husband can’t prove her earnings! P&H HC

Punjab and Haryana HC denies Interim maintenance to a well qualified doctor wife who files 498a and CrPC 125 cocktail !! Court categorically asserts that “…Everyone has to earn for himself or herself or at least make an effort and would not sit idle…..”

A classic case where a doctor wife is first refused maintenance by the Magistrate court, then on revision before the sessions court she is granted Rs 10000 p.m. and the P & H HC rightfully orders that she IS NOT ELIGIBLE for maintenance as she is a well qualified Physiotherapist doctor !!

The Hon HC orders and we quote “….The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside……”

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In the High Court of Punjab and Haryana at Chandigarh

Criminal Revision No. 2625 of 2014 (O&M)

Date of Decision: 29.09.2016

Monu Songra ….Petitioner

Versus

Pinki ….Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Ashish Gupta, Advocate for the petitioner.

Mr. P.K.Ganga, Advocate for the respondent.


ANITA CHAUDHRY, J (ORAL)

The petitioner has assailed the order dated 13.6.2014 passed by the Additional Sessions Judge, Sirsa who allowed interim maintenance of Rs. 10,000/- per month to the wife reversing the order of the Magistrate who had dismissed the application filed under Section 125 Cr.P.C.

The parties were married on 27.11.2010. The husband is a Constable in Rajasthan. There is no child from this marriage. The wife had claimed that she had conceived but it resulted in miscarriage on 1.3.2011. Allegations were made that there were demands of dowry and she was not treated well. She claimed that she was thrown out of the matrimonial home. The petition under Section 125 Cr.P.C. was filed in February 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Chief Judicial Magistrate vide its order dated 3.10.2013 dismissed the application and the reasons are disclosed in para 8 of the order which reads as under:- “After hearing ld. Counsel for the parties and having gone through record carefully I am of the considered opinion that the application is liable to be dismissed. It is admitted case of the parties that they married to each other. It is also admitted case of the parties that they got strained relations between them. It is also admitted fact that no child was born out this wedlock. It is also admitted fact that criminal case u/s 498-A IPC has been registered against the respondent at the instance of the complainant. It is also admitted case that the petitioner filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which was dismissed as withdrawn. No doubt there are counter allegations against each other and both the parties are trying to make the other party responsible for disturbing the matrimonial life. But in this application, only one this is to be examined as to whether the petitioner is unable to maintain herself or whether he or she is having any sufficient means of income. The copy of FIR mentioned above clearly shows that the petitioner has categorically stated therein that she is physiotherapist doctor meaning thereby that she is well educated and respondent has categorically stated that she is earning 25,000/- per month. Even this amount may be exaggerated however it can be easily inferred that she might have been earning sufficient income maintain herself.”

Aggrieved by the judgment, a revision was preferred by the wife. The Additional Sessions Judge, Sirsa vide its order dated 13.6.2014 was of the view that even if the wife had a professional degree it would not matter and she would have to gain sufficient experience to earn and there was no allegation that she was working as a doctor in an institute or had opened her own clinic. It allowed the revision and awarded Rs. 10,000/- per month as maintenance.

The petitioner claims that the wife did not want to live with him and she had filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights but later the petition was withdrawn as he had appeared and made a statement that he was willing to keep her at his place of posting but the wife refused to accompany him. It was pleaded that the wife had got an FIR registered against him. It was also pleaded that the petitioner had concealed that she was a Physiotherapist before her marriage and was working and she did not mention this fact in her petition and it was a case of concealment. It was pleaded that his basic salary was Rs. 8550/- per month and after deduction, the carry home salary was 15065/- and the Court below had allowed Rs. 10,000/- taking the major portion of his salary, when he had his old parents to look after.

I have heard submissions of both the sides.

Counsel for the petitioner has placed on record a copy of the judgment dated 30.4.2016 to show that the trial had ended in acquittal. He has placed on record a copy of the FIR where the wife had described herself as a physiotherapist (doctor).

The submission on behalf of the petitioner was that the wife had deserted the husband and she did not want to go and live in Rajasthan and she herself withdrew the petition and it was a case of concealment of fact. It was urged that the wife had done her diploma in Physiotherapy after her 12th class and thereafter had completed her Graduation sometime in 3 of 5 2007 and the marriage took place in 2010 and the wife was working even before marriage and the Revisional Court assumed that it would take a number of years for her to settle in her profession. It was urged that the Court did not consider the fact that there was an admission that she was a Physiotherapist and this information was given by her at the time of lodging of the FIR in September 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The submission, on the other hand, was that the respondent was not earning and the husband is under a duty to provide for the wife.

The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside.

Before parting with the order, it is necessary to mention that the petition filed in 2013 has still not been decided. The litigation can really corrode human relationship and it is the duty of the Court to curtail it. There is no need to hurry but procrastination should not be manifest. The Courts should be in complete control over the proceedings and should not permit the lis to be prolonged and if either party is delaying the proceedings, necessary steps should be taken.

The petition is allowed. Order dated 13.6.2014 passed by the Additional Sessions Judge, is set aside.

Nothing contained in this order shall be taken as an opinion on merits. The trial Court would independently decide the case on the basis of the evidence that shall be adduced by the parties.

(ANITA CHAUDHRY)
JUDGE

September 29, 2016

Gurpreet


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting