Tag Archives: Maintenance Denied

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


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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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Get a job, don’t rely on ex-husband: Court to woman seeking alimony

Hindustan Times, New Delhi

Updated: Mar 23, 2016 09:18 IST

The court asked the woman seeking maintenance after her divorce to start sincere efforts to look for a job, instead of relying on the alimony. (File photo)

A city court asked a woman to look for a job, saying she was qualified and capable and should not put financial burden on her estranged husband, a decision that could spur a debate on India’s alimony system. The man agreed to help her find employment and pay maintenance for a year.

 

The court’s observation came on an appeal filed by the man against paying Rs 12,000 a month to support his wife.

“The respondent (woman) admitted being more qualified than the appellant (man). She admitted to being able-bodied and having capacity to earn. As such, she cannot be allowed to sit idle at home to put financial burden on the appellant,” said district judge Rekha Rani. “Let her make sincere endeavour to find work.”

Under the Indian legal system, a separation or divorce entitles a woman to maintenance from her spouse, in the form of financial support.

“If the woman needs assistance of the appellant in finding a job, she may communicate with him (the estranged husband) by sending SMS on mobile/email,” the court said.

The woman had argued that, though she was better qualified, she married young and never held a job or even travelled alone.

However, the man said his estranged wife was not entitled to monetary relief as she was more qualified than him. His appeal pointed out that she was an MSc gold medallist. He alleged she had not applied for a job anywhere and wanted to sit idle and remain a financial burden on him.

On the woman’s submission that she had never travelled alone and wanted the man to go with her on job searches, the court said “the submission is neither palatable nor digestible”.

“Both are coming to the court separately. If she can come to the court to fight litigation alone, she can go alone to search for a job as well,” the judge observed.

The man told the court he was willing to accompany her and assist her in whatever way she needed to find work.

“The man has agreed to pay her maintenance of Rs 12,000 per month for one year and during this period, she should make sincere efforts and start working,” the judge said

 

source :

http://www.hindustantimes.com/india/get-a-job-don-t-rely-on-maintenance-court-tells-woman-seeking-alimony/story-IiQmAwxSEDuxPp6wvPr5lK.html?utm_source=facebook&utm_medium=fbpost&utm_campaign=legal

 

No maintenance to wife with income! pay only to kid! husband with own business & wife’s bank stmt escapes! Delhi Sessions court

No maintenance to wife with income!! However husband to pay Rs 7500 for kid! Story of How a husband with own business & wife’s bank statement escapes partly in a DV case where he (husband ) is NOT admitting violence….

A husband who runs his own business claims he earns just a few thousands per month when his wife screams at the top of her voice that he is making millions per annum ( she claims that husband earns 3 lakh per month!!). Additionally the husband gets hold of her bank statement to prove that she is receiving credits of handsome amounts into the account (thereby making the court conclude that she is employed).

Faced with these facts, Both the magistrate court and sessions court refuse maintenance to the wife ! Husband is ordered to pay Rs. 7500/- for his kid !!

However this husband tries to argue that there is NO domestic violence in his case… Unfortunately that argument is NOT accepted by the courts who refuse that plea saying “specific allegations” have been made by the wife !! This is a sad part of the “interim” , “ad-interim” and other temporary reliefs provided to appellants and children, where JUST when the marriage is proven, and the earnings of the husband are either proven or assessed / computed, the husband is forced to give money to the wife and / or children !! The husbands in all these cases argue vehemently stating that they are NOT at fault !! Still they are forced to pay interim… and whatever is paid during interim is lost for ever !!

As I have OFTEN stated, “interim” , “ad-interim” maintenance granted to wife or children EVEN when the husband has NOT erred is one of the worst attacks on honest law abiding married men !!


IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ­05 : WEST

DISTRICT, TIS HAZARI COURTS, DELHI

CA No.57/15

21.11.2015

IN THE MATTER OF:­

Smt.Nidhi Garg
W/o Sh.Ajay Garg,
R/o Flat no. 702, Tower no. BT­10,
Omex Heights, Sector­86,
Faridabad, Haryana.                                           …………… Petitioner

Versus
(1) Ajay Garg
S/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.

(2)Smt.Kailash Garg,
W/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.                                            ………… Respondents

Date of Institution                           :       22.11.2014
Date of reserving the order           :       19.11.2015
Date of decision                            :       21.11.2015

AND CA No.58/15

IN THE MATTER OF:­

Ajay Garg
S/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.                                   ………… Petitioner

Versus
(1)Smt.Nidhi Garg
W/o Sh.Ajay Garg,
R/o Flat no. 702, Tower no. BT­10,
Omex Heights, Sector­86,
Faridabad, Haryana.

(2)Smt.Kailash Garg,
W/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.                                            ………… Respondents

Date of Institution                           :       21.10.2014
Date of reserving the order           :       19.11.2015
Date of decision                            :       21.11.2015

JUDGMENT

 

  1. Vide this Judgment, I shall dispose of the appeal filed by Smt.Nidhi Garg against the respondent Ajay Garg against the order dt. 25.09.2014. Vide this order, the Ld.MM has declined to grant any maintenance to her. By way of the present Judgment, I am also deciding the appeal filed by Ajay Garg against the respondent Smt.Nidhi Garg against the order dt. 25.09.2014, vide which the appellant was directed to make the payment of Rs.7,500/­ per month for the maintenance of the child from the date of filing the application till the time he is legally entitled/further orders. The appellant is further directed to clear the arrears of maintenance within four months from the date of this order. It is also mentioned in the said order that the amount paid to the child either in this case or in any other proceedings shall be adjusted accordingly. As both the appeals arise against the common order dt. 25.09.2014, I am deciding both the appeal bearing nos. 57/15 titled as Nidhi Garg Vs. Ajay Garg & others and 58/15 titled as Ajay Garg Vs. Nidhi Garg & others, together.
  2. The essential facts of the case as per the petition filed by the petitioner Nidhi Garg are that the marriage between the parties was solemnized on 26.11.1995. The complainant immediately after the marriage, came in the matrimonial home. She was harassed and tortured by the respondents. It is mentioned that the complaint was ridiculed by the respondent no.3 about her appearance and height. Out of the said wed­lock, a male child was born on 30.10.1996. The complainant used to work in Damco Solutions. She used to financially help her husband i.e. respondent no.1 as and when it was solicited. It is also mentioned that the complainant was persuaded by respondent no.1 to provide him the capital to start his own business and believing him, she paid a sum of Rs.4 lacs to the respondent no.1. After taking money from her, he started his business under the name and style of “Futek Industry”. It was a partnership concern with Mr.Abrar Ali. It is mentioned that in the year 2010, she lost her job. In July, 2011, when she demanded money from her husband, he refused to give her money on the pretext that he was not earning well. He refused to give money to the complainant for household expenses or for the treatment of his minor child. Lateron, she came to know from the partner of respondent no.1 that respondent no.1 is having extremely flourishing business. She was threatened and intimidated by the respondent no.1 on phone. She got scared and left the house on the same night with her minor child and sister. She again joined the matrimonial house but on 06.11.2011, respondent no.1 permanently left the house. On 20.12.2012, complainant, her sister alongwith her minor child shifted to Faridabad. It is also mentioned by the complainant that the child namely Ketan is a special needed child and his chronological age is approx. 17 years but his social age is 9­10 years. He is studying in Open School and now she wants money to maintain herself and child. It is also mentioned that respondent no.1 is doing business of Engineering job work and earning Rs.3 lacs per month. There are several machines installed by the respondent no.1 at his factory. But despite that, respondent no.1 is not maintaining them. The complainant claimed an amount of Rs.1.25 lacs per month as maintenance for herself and her child.
  3. The respondent no.1 has also filed the reply and denied the averments mentioned in the application.
  4. Aggrieved by the said order, the complainant preferred the appeal on the grounds that the impugned order is bad and contrary to the facts of the case. The Ld.M.M. has declined to grant any maintenance to the complainant but grossly erred in awarding the interim maintenance to minor son @ Rs.7,500/­ per month. Respondent no.1 has conceded his income, assets and details of the companies from the Ld.trial court. The respondent no.1 has not filed an affidavit in accordance with the directions of the ld.trial court and Ld.trial court has erred in assessing the income of the respondent no.1 as Rs.20,000/­ to Rs.22,000/­ per month. Respondent no.1 has admitted in his reply and affidavit that his last drawn salary was Rs.12,200/­ per month in the year 2001 and has also filed a salary certificate dt. 05.04.2002. Respondent no.1 is B.Tech Engineer and who was drawing a salary of Rs.12,200/­ per month in the year 2001. Respondent no.1 has concealed his income. Respondent no.1 is doing business of Engineering Job work and has employed more than 20 people in his factory. There are several milling machines, 6 lathe bendsaw machines and cutting and grinding machines in the factory of the respondent no. 1. It is also mentioned that the child Ketan is a special needed child. He is suffering from various ailments and also suffers from absence attacks and epilepsy and on various occasions, child fainted. In absence of any adult member, the child can harm himself or can meet with an accident. Due to Epilepsy of the child, the appellant had to quit her job in 2010. The Ld.trial court has filed to observe these facts. It is prayed that order dt. 25.09.2014 be set aside.
  5. On the other hand, ld. Counsel for respondent no.1 has assailed the order of ld.trial court on the ground that the ld.trial court has grossly erred his income. The income of the appellant is between Rs.5,000/­ and Rs.6,000/­ per month. The ld.trial court has failed to consider that he is not doing any business. Only two machines are installed at his work place and he is doing job work only. It is also mentioned that Ld.M.M. has wrongly assessed his income as Rs.20,000/­ to Rs.22,000/­ per month and wrongly directed him to pay Rs.7,500/­ per month to his child as maintenance.
  6. I have heard the arguments made by the both the ld.defence counsels for both the parties. I have also perused the trial court record carefully.
  7. It is admitted fact that the marriage between the parties was solemnized on 26.11.1995 and a male child namely Ketan was born on 30.10.1996. It is also admitted fact that the complainant alongwith her child left the matrimonial house in the year 2011 and she again joined the matrimonial house. It is also admitted fact that on 20.12.2012, she alongwith her minor child had shifted to Faridabad.
  8. Now the question arises whether the complainant is entitled to any maintenance from the respondent no.1. The complainant/appellant in her affidavit has admitted that she has purchased 3 BHK Flat alongwith her sister. It is also mentioned that she is paying an amount of Rs.11,000/­ per month as rent. She also stated that Rs. 50,000/­ per year is required for two trips. As per the affidavit, the complainant has done two years course from NIIT and AS/400 certification from IBM.
  9. The counsel for respondent no.1 has drawn my attention towards the bank statement of account no.65128070877 of the appellant of State Bank of Patiala. It is not denied that the appellant is not holding this account and as per this account, various transactions were made from 17.11.2011 till 31.01.2014.
  10. As per the averments of the complaint, the complainant had left the job and now she is not working. If the petitioner is not working, then from where the amount is being received in her account. This statement of account shows that Rs.80,050/­ was credited in her account on 17.11.2011. Rs.36,000/­ was credited in her account on 11.02.201 and Rs. 49,500/­ credited in her account through cheque on 11.052012 and Rs.1.35 lacs credited in her account on 11.07.2012 by cash. There are various other transactions and ld. Counsel for respondent no.1 has stated that total Rs. 12,44,000 has been deposited in the account of the complainant from period 17.11.2011 to 31.01.2014. Thus, the complainant is not able to satisfy this court as to from where this amount is being received by her.
  11. During arguments, it is contended by the ld. Counsel for the appellant that the appellant used to receive the said amount as interest from her earlier FDRs. I fail to appreciate this contention of the ld. Counsel for the appellant that hafty amount is being received by the appellant from the FDRs. Thus, it cannot be said that the appellant is not working at present. Thus, the ld.M.M.has rightly declined to grant any maintenance to the complainant.
  12. Now the question arises, whether the ld. M.M. has rightly assessed the income of respondent as Rs.20,000/­ to Rs.22,000/­ per month and rightly awarded the maintenance of Rs.7,500/­ per month to the child.
  13. The ld.M.M. has given detail findings of assessing the income of the respondent no.1 as Rs.20,000/­ to Rs.22,000/­ per month. The ld.trial court has held that when respondent was working in Faridabad, he used to earn Rs.12,200/­ per month. It is also admitted fact that respondent no.1 is working and two machines were installed by him in his factory. No document has been placed on record by the complainant to show the income of respondent no.1. During arguments, no document has been shown by the complainant that the respondent no.1 is earning more than Rs.1 lac.
  14. Ld.counsel for the respondent no.1 has placed reliance upon the Judgment titled as Amit Khanna & Anrs. Vs. Priyanka Khanna & Others 2010 (119) DRJ 182, wherein it is held that : “No concrete proof of high status and vast property of husband. Mere allegations made by the wife that husband was a man of status and had vast movable and immovable properties would not give jurisdiction to the court to pass an order of maintenance beyond the means of the husband. Properties in the name of in laws cannot be considered. Income of the husband was Rs.41,000/­ per month (without deducting tax),granting maintenance plus rent of Rs,45,000/­ per month, under no circumstance is justified. Maintenance of Rs.15,000/­ per month and rent of Rs.5,000/­ per month awarded”.
  15. Ld. counsel for the respondent no.1 has also placed reliance upon the Judgment AIR 2007 Delhi 89 titled as Vijay Malti Vs. Rajiv Vig,wherein it is held that : “As far as the education of the respondent’s son is concerned. It was submitted that in our society, even if the parent or the father is financially weak, the grand parents would support such needs; the son was therefore, helped in educating the child born out of the second marriage by the father, who was the employer, and no exception could be taken in this arrangement”.  I have perused this judgment with utmost regard. This judgment is against the order passed by the Ld. ADJ U/s 24 of the Hindu Marriage Act. The present petition is U/s 12 of the D.V.Act.
  16. Ld.counsel for the respondent no.1 has also place reliance upon the Judgment titled as Damanreet Kaur Vs. Indermeet Juneja & Anrs. 2012 (5) LRC 279 (Del), wherein it is held that “Ld.ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/­ per month and had chosen not to work of her own will though had to capacity to work and find a suitable job for herself. Well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding money from him during pendency of such matrimonial petition. Child for which maintenance of Rs.10,000/­ per month from the date of filing of the petition has been ordered by Addl.Sessions Judge is just and fair and sufficient to meet the requirements of a child which is aged about 3 ½ years. No interference. Petition dismissed”. Ld. counsel for the petitioner has also placed reliance upon the Judgment titled as Chander Prakash Bodh Raj Vs. Shila Rani Chander Prakash., in Crl.Revision no. 381 of 1967 wherein it is held that : “It was for the able­bodied person to show to the Court cogent grounds for holding that he was unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child – when the husband does not disclose to the Court, the exact amount of his income, the presumption against him would be easily permissible”.
  17. Ld. counsel for the petitioner has also placed reliance upon the Judgment titled as Kusum Sharma Vs. Mahinder Kumar Sharma. I have perused these Judgments with utmost regard. The same are not helpful to the appellant. In view of abovesaid discussion and judgements, I am of the view that the ld. M.M. has rightly assessed the income of respondent no.1 as Rs.20,000/­ to Rs.22,000/­ per month. I am also of the view that the Ld.M.M. has taken into consideration all the aspect while granting the maintenance of Rs.7,500/­ per month to the child.
  18. It is vehemently contended by ld. Counsel for respondent no.1 that there was no domestic Violence and in absence of domestic violence, complaint U/s 12 of the Domestic Violence Act cannot be filed. I fail to appreciate this contention of the ld. Counsel for respondent no.1. The appellant has levelled specific allegations against the respondents regarding the acts of D.V. against her. Thus, it cannot be said that the provisions of D.V.Act are not applicable in the present case.
  19. Ld. counsel for the respondent no.1 has placed reliance upon the Judgment 2010 (118) DRJ 520 titled as Vijay Verma Vs. State NCT of Delhi & Anrs., wherein it is held that : “Wife making application not ‘living together’ in the house immediately before filing of application rather settled in USA after leaving her parents here – only the violence committed in a shared household covered by the provisions of the Act. Application held to be not maintainable”. I have perused this Judgment. As the petitioner has levelled specific allegations of domestic violence against the respondents, this Judgment is not helpful. 18. Ld. Counsel for the respondent no.1 has also placed reliance upon the Judgment titled as Harbans Lal Malik & others Vs. Payal Malik 171 (2010) Delhi Law Times 67, wherein it is held that : “Section 2(f) “Domestic Relationship”–Arises between two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through relationship in nature of marriage, adoption or family members living together as joint family. Definition speaks of living together at any point of time however, it does not speak of having relation at any point of time“.  I have perused this Judgment with utmost regard. The same is not helpful to the respondent no.1.
  20. In view of above discussion, I am of the considered view that as the child is a special needed child and expenses are being incurred on his treatment. It is the duty of the petitioner and respondent no.1 to maintain the specially needed child. I am of the view that there is no illegality or infirmity in the order dt. 25.09.2014 passed by the Ld.MM. Accordingly, both the appeal bearing nos. 57/15 and 58/15 stand dismissed. Trial court record be sent back alongwith copy of this Judgment. Revision file be consigned to Record Room.

 

Announced in the Open Court on 21.11.2015

(Naresh Kumar Malhotra)

Additional Sessions Judge­05

West/THC/Delhi

Quash Sec 125 CrPC case when a civil (divorce) case is already pending ! Madras HC (old case)

A classic case where the Madras HC quashes a Sec 125 case filed by the wife three years after desertion and AFTER  a civil (divorce) case is also pending between the couple

the court clearly states that Sec 125 CrPc is for quick and expeditious relief, when there is NO other relief in sight. So it is NOT proper for the wife to run to a magistrate court and seek relief under sec 125 when a civil case (for divorce and other reliefs) is already proceeding / pending !

We are NOT sure IF this will help all situations, but we feel this should help some husbands in a very similar situation (at least the ratio used in the case is very strong)


Madras High Court

G. Ramanathan vs Revathy on 16 March, 1989

Bench: D Annoussamy

ORDER

  1. This is a petition by the husband under S. 482 of the Cr.P.C. to quash the proceedings for maintenance instituted by the wife respondent under section 125 Cr.P.C.
  2. The case put forth by the husband is that the petition was filed before the Magistrate’s Court three years after the alleged desertion and therefore there was no emergency as alleged in order to invoke the quick remedy contemplated under section 125 Cr.P.C. He further stated that a divorce proceedings was already pending before the competent civil Court viz., S.P. No. 97 of 1984 and that it was open to the respondent to claim maintenance before that Court under section 24 of the Hindu Marriage Act.
  3. The learned counsel appearing for the wife contended before me that the proceedings under section 125 Cr.P.C. and the proceedings under the Hindu Marriage Act are two independent proceedings and therefore even during the pendency of a proceeding under the Hindu Marriage Act it was open to the concerned person to seize the Magistrate. The scheme contemplated under Chap. IX of the Cr.P.C. is one meant to meet emergent situations which the civil Courts cannot decide immediately, and which would cause disorder in the society. That is why it is made part of the Code of Criminal Procedure. Secondly such a provision was introduced for the first time (a) when there was not a complete network of civil Courts all over the country and (b) when the law regarding maintenance was still at a nebulous stage. Now there is a full-fledged law of maintenance, and also a full-fledged law regarding marriage and divorce. Section 24 of the Hindu Marriage Act contemplates maintenance pendente lite and S. 25 of the Act contemplates the grant of maintenance at the time of the decree or even at any time subsequent thereto on application by the concerned person.
  4. When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the Civil Court which is already seized. Further under S. 127 of the Cr.P.C. if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore come to the conclusion that the institution of a proceeding under S. 125, Cr.P.C. when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap. IX of the Cr.P.C.
  5. In the result, the Cr. Misc. Petition is allowed and the proceedings in M.C. No. 5 of 1985 on the file of the Sub-Divisional Judicial Magistrate, Sankaridurg are quashed
  6. Petition allowed.

NO maintenance to wife if she lives away from husband by mutual consent – Madras HC

Wife seeks maintenance. Husband presents mutual agreement wherein wife has agreed to live separately . Lower courts award maintenance in spite of the agreement (to live apart). Madras High court appreciates the spirit of sec 125 Crpc Sub sections (4) and (5) and orders that woman staying away from husband by mutual consent is NOT entitled to maintenance


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.2.2008

CORAM : THE HON’BLE MR.JUSTICE P.R.SHIVAKUMAR

Crl.R.C.No.1491 OF 2005

Marimuthu … Petitioner
vs.
Janaki … Respondent

Criminal Revision Case is filed against the order passed in M.C.No.4 of 2003 dated 2.9.2005 on the file of Judicial Magistrate No.2 of Ponneri.

For petitioner : Mr.C.R.Dhasarathan
For respondent : Mr.S.Parthasarthy

ORDER

This revision is directed against the order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 made in M.C.No.4 of 2003 directing the revision petitioner herein (husband) to pay maintenance to the respondent (wife) at the rate of Rs.500/- per month from the date of petition.

  1. The respondent herein contending that her husband, namely the revision petitioner, neglected and failed to maintain her whereas she was not having sufficient means to maintain herself, filed the above said maintenance case praying for an order directing the revision petitioner to pay her maintenance at the rate of Rs.1,500/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  2. The said petition was resisted by the revision petitioner herein on the ground that the respondent (wife) had withdrawn from the company of her husband without any justification and that subsequently there was a settlement between the parties, pursuant to which both of them mutually agreed to live separately. In order to support the defense case of the revision petitioner, he has relied on a document marked as Exhibit R.1 dated 21.10.2002.

  3. The learned Judicial Magistrate No.2, Ponneri after considering the evidence both oral and documentary adduced on either side, came to the conclusion that the respondent herein (wife) was entitled to get maintenance from her husband (the revision petitioner herein), fixed the quantum of maintenance of Rs.500/- per month and passed an order directing the revision petitioner to pay such maintenance from the date of the petition filed under Section 125 Cr.P.C. before the said Magistrate.

  4. Questioning the correctness and legality of the said order passed by the learned Judicial Magistrate No.2, Ponneri the present revision has been filed.

  5. The learned counsel for the revision petitioner, drawing the attention of the Court to Sub Clause 4 of Section 125 Cr.P.C., contended that a wife who is living away from her husband by mutual consent between the husband and wife, would not be entitled to an order of maintenance under Section 125 Cr.P.C; that even if an order of maintenance happened to be passed under Section 125 Cr.P.C. earlier in point of time and subsequently they continued to live separately by mutual consent, Sub Section 5 provided for cancellation of such an order of maintenance and that hence, the order of the Judicial Magistrate passed in utter disregard of the said provisions and Exhibit R.1 should be held discrepant, unsustainable in law and liable to be set aside in exercise of the revisional powers of this Court.

  6. On the other hand, the learned counsel for the respondent contended that the mutual consent for separate living, as found in Sub clauses 4 and 5 of Section 125 Cr.P.C., to be effective and acted upon by the Court dealing with the petition under Section 125 Cr.P.C. should have been incorporated in a decree or order of a competent Court and otherwise the same would be ineffective.

  7. The short point that arises for consideration in this revision is: “whether a mutual consent between the husband and wife evidenced by a document should have been incorporated in a decree or order of a competent Court to be recognized and acted by a Court dealing with a maintenance case under Section 125 Cr.P.C.?

  8. For the sake of convenience, sub Sections 4 and 5 of 125 Cr.P.C. are reproduced as hereunder:- “(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. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”

  9. A bare reading of the said sub Sections will make it clear that the said provisions did not require the incorporation of the mutual consent arrived between the parties for living separately in any decree or order of a competent Court to constitute a valid defense in a petition under Section 125 Cr.P.C. claiming maintenance. Therefore, this Court is not in a position to countenance the above said argument advanced by the learned counsel for the respondent (wife). As rightly pointed out by the learned counsel for the revision petitioner, the genuineness of Exhibit R.1 has not been disputed by the respondent. Of course, the said document which contains recitals to the effect that each of the parties to the said document was free to contract marriage with the person of his/her choice, the same cannot be construed to be a valid document bringing about the dissolution of marriage. However, clear recitals have been found in the said document evidencing mutual consent between the revision petitioner and the respondent to live separately. The relevant part of Exhibit R.1 is extracted hereunder:- VERNACULAR (TAMIL) PORTION DELETED

  10. The said document was dated 21.10.2002. It clearly spells out the mutual consent of the parties to live separately. The learned Judicial Magistrate, without properly appreciating the said document and without applying the principle of law found in Sub-Section 4 of Section 125 Cr.P.C., has erroneously held that the respondent (wife) was entitled to maintenance. The said order passed by the learned Judicial Magistrate, which is against the spirit of the statute and passed in ignorance of the said statutory provision, is definitely infirm and discrepant. The non- application of the said statutory provision to the case on hand by the learned Judicial Magistrate will make his order unsustainable. This Court is satisfied that the said order has got to be set aside in exercise of the revisional powers of this Court.

  11. In the result, the revision case succeeds and accordingly the same is allowed. The order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 passed in M.C.No.4 of 2003 is hereby set aside. M.C.No.4 of 2003 shall stand dismissed. Consequently, connected M.P.No.8952 of 2005 is closed. No costs.

lan

To The Judicial Magistrate No.2, Ponneri.

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