no maintenance to deserting wife: MP High Court nov 2016

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Jarat Kumar Jain )
Criminal Revision No.829 of 2014
Anil S/o Shri Suganchandra Jain
V E R S U S
Smt. Sunita W/o Shri Anil Kumar Jain and State of M.P.
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Shri S.J.Polekar, learned Counsel for the applicant.
Shri Piyush Shrivastava, learned Counsel for
the respondent No.1
Smt. Mamta Shandilya, learned Dy. Govt. Advocate for the
respondent No.2/State.
* * * * * * * *
O R D E R
( Passed on this th day of November, 2016 )
THIS revision under Section 19(4) of the Family Court Act,
1984 has been filed against the order dated 31.05.2014
passed by the Principal Judge, Family Court, Ratlam in
M.Cr.C. No.203/2014 whereby directed the
applicant/husband to pay maintenance @ Rs.4,000/- per
month to the non-applicant/wife from the date of order.
[2] It is an admitted fact that applicant’s marriage was
performed with non-applicant on 20.04.2008 and they lived
together first time for 7 days and second time for 12 days i.e.
11.05.2008 to 22.05.2008. Thereafter non-applicant/wife had
left matrimonial home and since then she is living in her
parental home at Ratlam. She is an enrolled Advocate since
the year 1991.
[3] Non-applicant/wife had filed an application under Section
125 of the Cr.P.C. stating that when she lived in her
matrimonial home since 11.05.2008 to 22.05.2008 during
that period her husband (applicant) and mother-in-law had so
harassed her that she was forced to leave her matrimonial
home, before leaving the matrimonial home her signatures
were obtained on blank stamp papers. Applicant’s first
marriage was performed with Ranjana but only after two
months she divorced the applicant due to harassment of
applicant. Non-applicant is having no means to maintain
herself whereas applicant is a manufacturer of Ayurvedic
medicine and used to earn Rs.25,000/- per month. On these
grounds she claimed maintenance @ Rs.5,000/- per month
from the date of application.
[4] Applicant in the reply denied the allegations and stated
that he and his mother had never harassed the non-applicant.
On 23.05.2008, in the absence of applicant non-applicant had
left matrimonial home along with her brother Anil and one
Shrenik Bapna. On 26.05.2008 applicant went to Ratlam to
take non-applicant with him, however, she refused to come
with the applicant, thereafter applicant made many attempts
to take back her but she was not ready to come back and live
with applicant. Thus, she is living in her parental home
without any reason. The applicant is hardly earned Rs.3,000/-
per month and he has to maintain his sick mother also;
whereas non-applicant is an Advocate and has sufficient
income to maintain herself. In such circumstances, she is not
entitled for maintenance.
[5] Both the parties adduced evidence. Trial Court held that
the non-applicant was harassed by her mother-in-law and
applicant. Hence, she had sufficient reason not to live with
her husband/applicant. Applicant is earning more than
Rs.50,000/- per year whereas non-applicant/wife had no
income from the profession as an Advocate. Hence, Trial
Court directed the applicant to pay maintenance @
Rs.4,000/- per month from the date of order. Being aggrieved
the applicant has filed this revision.
[6] Learned Counsel for the applicant submits that the nonapplicant
had left the matrimonial home voluntarily and is
living in her parental home without any reason. The finding
of trial court that only in 12 days non-applicant was so
harassed that she was forced to leave matrimonial home is
erroneous. Actually she is practicing lawyer since the year
1991 at Ratlam and has sufficient income to maintain herself.
Thus, she is not entitled for maintenance. Trial court gave a
finding that applicant used to earn Rs.50,000/- per year;
whereas directed the applicant to pay Rs.4,000/- per month
i.e. Rs.48,000/- per year to the non-applicant. Such direction
is against the evidence on record. Thus, the order passed by
the Trial Court is liable to be set aside. For this purpose
learned Counsel for the applicant placed reliance on the
judgment of this Court in the case of Prakash Kushwaha
V/s. Smt. Pooja reported in 2014 (2) JLJ 189 and Savita
Bai V/s. Prahlad reported in 2013 (3) M.P. Weekly Note
77.
[7] On the other hand, learned Counsel for the non-applicant
supports the impugned order and submitted that the nonapplicant/wife
is ready to live with the applicant; however,
due to harassment she is compelled to live separately.
Hon’ble Apex Court in the case of Laxmi Bai Patel V/s.
Shyam Kumar Patel reported in JT 2002 (3) SC 409 held
that the responsibility of husband to maintain his wife and
wife has the right to claim maintenance so long as she stays
away from the matrimonial home under compelling
circumstances. This court in the case of Dalibai V/s.
Rajendra Singh reported in 2006 (1) MPLJ 495 held that
wife left matrimonial house and started living separately due
to harassment by husband. To prove this fact statement of
wife is sufficient to hold that there was reasonable and
sufficient cause available to her to live separately, hence the
revision be dismissed.
[8] After hearing learned Counsel for the parties, perused
the record.
[9] This Court has to examine the findings of Trial Court as
to whether non-applicant/wife has sufficient reason to live
separately and whether she is unable to maintain herself.
[10] Admittedly after marriage non-applicant/wife lived in
her matrimonial home first time for 7 days. There is no
allegation that during that period she was harassed by her
in-laws, thereafter she lived in her matrimonial home from
11.05.2008 to 22.05.2008 i.e. for 12 days, thereafter she was
forced to leave her matrimonial home. In this regard it is
useful to refer Para 9 of her deposition in which she admitted
that she was having a mobile phone and used to talk with her
brother, however, she has not made any complaint about her
harassment to her brother. She left matrimonial home with
her brother Anil. But she has not made any complaint to
anybody or lodged a report at Police Station. On the other
hand, her brother Anil Chhajed (PW-2) deposed that on
22.05.2008 she came to Ratlam to select a girl for his
marriage. Anil did not depose that non-applicant has
complained him about harassment in her matrimonial home.
In the cross-examination of the applicant no question was
asked about alleged cruelty and harassment.
[11] I would like to refer to the judgment of this Court in the
case of Savita Bai (Supra) in which after marriage Savita
Bai resided only for 8 days in the house of her husband and
thereafter, she left the house without any reason and unable
to prove the charge of harassment. Under such
circumstances, this Court has held that “the applicant-wife
is not entitled for maintenance.” In the present case also
non-applicant-wife resided in her matrimonial home for the
first time for 7 days and second time for 12 days and it is
alleged that in these 12 days she was harassed. It is
practically impossible that she could have been so harassed
that it is impossible for her to live in her matrimonial home.
After 12 days she had voluntarily gone with her brother with
a view to select a girl for marriage of her brother. Thus, it
can not be held that she was thrown with force from her
matrimonial home or she was forced to leave her matrimonial
home.
[12] Learned counsel for the non-applicants placed reliance
on the judgment of Laxmi Bai Patel (Supra) and Dalibai
(Supra). Facts of these cases are quite different, therefore,
these cases are not helpful to the non-applicants.
[13] With the aforesaid, I am of the view that the finding of
the Trial Court that non-applicant/wife has sufficient reason
to live separately is not sustainable in law. Nonapplicant/wife
is residing separately without any reason,
hence, she is not entitled for maintenance under Section 125
of Cr.P.C.
Thus, the order passed by the Trial Court is hereby set-aside
and the revision is hereby allowed.
[ JARAT KUMAR JAIN ]
JUDGE
ns + Adarsh