Cr. Revision No.441 of 2005

7th August, 2008

Petitioner Counsel: J. B. MEHTA
Respondent Counsel: UMESH SHARMA

Cases Cited:
Chaturbhuj Vs. Sita Bai, 2008 ALL MR (Cri) 860 (S.C.)=2008(1) Crimes 74 (SC) [Para 7]

JUDGMENT

JUDGMENT :- Petitioner by Mr. J. B. Mehta, Advocate.

Respondent by Mr. Umesh Sharma

2. This order shall also govern the disposal of Cr. R. No. 366/05, as both the revision petitions are arising out of an order dated 28-2-2005 passed by Family Court, Ujjain in Criminal Case No.405/02, whereby the petition filed by petitioner under section 125, Criminal Procedure Code for grant of maintenance was allowed and maintenance was awarded @ 1,000/- per month.

3. Cr. R. No.441/05 is filed by the petitioner, wherein the grievance is that the amount awarded is grossly inadequate. While Cr. R. No.366/05 has been filed by the respondent, wherein the prayer is that the impugned order whereby the maintenance has been awarded be set aside.

4. Short facts of the case are that the petitioner filed a petition before the learned Court below for grant of maintenance @ Rs.3,000/- per month alleging that the petitioner is wedded wife of the respondent, whose marriage were solemnized on 25-11-1996. It was alleged that out of the wedlock petitioner has delivered a baby whose name is Alisha on 9-8-1997. It was alleged that respondent has neglected the petitioner and her daughter. It was alleged that petitioner was subjected to cruelty on account of demand of dowry and in the circumstances petitioner is living with her parents along with her daughter. It was alleged that respondent is earning Rs.20,000/- per month, while petitioner is unable to maintain herself, as she is dependent on her parents along with her daughter. On the basis of these allegations it was prayed that the maintenance be awarded.

5. The application filed by the petitioner was opposed by the respondent by filing reply, wherein all the allegations made in the petition relating to the neglect on the part of respondent were denied. It was denied that petitioner was subjected to cruelty. It was alleged that petitioner on her own has left the house of the respondent. It was also denied that respondent is earning Rs.20,000/- per month. It was alleged that respondent is in a private job and is earning Rs.2,225/- per month w.e.f. 1-4-1999, prior to it the salary of the respondent was Rs.2,195. It was prayed that the petition filed by the petitioner be dismissed.

6. After holding summary enquiry learned Court below allowed the application filed by the petitioner and awarded the maintenance @ Rs.1,000/- per month to the petitioner and her daughter, against which the present petition has been filed.

7. Mr. J. B. Mehta, learned counsel for petitioner argued at length and submits that the impugned order passed by the learned Court below, wherein the maintenance has been awarded @ Rs.1,000/- per month is illegal and deserves to be enhanced. It is submitted that in spite of the fact that petitioner has proved that the income of the respondent is Rs.20,000/- per month, there was no justification on the part of learned Court below in awarding the maintenance only Rs.1,000/- per month. Learned counsel further submits that while fixing the maintenance @ Rs.1,000/- per month learned Court below relied on the salary certificate submitted by the respondent. It is submitted that virtually respondent is having his own shop of fertilizers, pesticides, ropes and other agricultural implements. It is submitted that respondent is carrying on his business in the name and style of M/s. Ramchandra Maheshkumar. It is submitted that respondent himself is the owner of the shop. It is submitted that in the facts and circumstances of the case, the amount of maintenance awarded by the learned Court below is grossly inadequate which may be enhanced. Learned counsel placed reliance on a decision in the matter of Chaturbhuj Vs. Sita Bai, reported in 2008(1) Crimes 74 (SC) : [2008 ALL MR (Cri) 860 (S.C.)], wherein Hon'ble Apex Court while considering section 125, Criminal Procedure Code observed that the test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family.

8. Mr. Umesh Sharma, learned counsel for respondent submits that the impugned order passed by the learned Court below whereby the maintenance has been awarded is illegal and deserves to be set aside. It is submitted that learned trial Court has found it proved that petitioner went to Bhopal to her parents house on 26-6-1998 on her own and is living there since then, without any sufficient cause. It is submitted that since petitioner herself has deserted the respondent, therefore, there was no justification on the part of learned Court below in awarding the maintenance. So far as quantum is concerned, learned counsel submits that the status of petitioner is of an employee. It is further submitted that looking to the salary the amount awarded is on higher side, which deserves to be reduced. Learned counsel further submits that petitioner also prosecuted the respondent under section 498-A, Indian Penal Code, wherein the respondent was acquitted. It is submitted that marriage between the parties has already dissolved by a decree of competent Court against which petitioner has moved an application for setting it aside, which is pending.

9. From perusal of the record it is evident that the marriage of the parties solemnized on 25-11-1996. Petitioner gave birth to a baby on 9-8-1997. It is no more in dispute that both the parties are living separately w.e.f. 26-6-1998. This fact is also not disputed that in a separate proceeding decree of divorce has been passed on 30-6-2003 by Family Court, Ujjain in Case No.225-A/02, which is in ex parte. To prove the case petitioner has filed the documents Ex.P/1 to Ex.P/4. Ex.P/1 is certificate issued by Mr. M. K. Shah, Tax Consultant, wherein it been stated that M/s. Ramchandra Maheshkumar firm is in business of sale and purchase of Khad, Rassi, Sutli, Pesticides, Medicines, of which sale between 1-4-1997 to 31-3-1998 is Rs.41,87,366.53. Ex.P/2 is the certificate issued by Ashiana a English Medium Nursery School, wherein on 20th March, 2002 it has been mentioned that a sum of Rs.2,100/- has been received as fee of Alisha Gupta daughter of Mr. Yogesh Gupta for the year 2001-02. Ex.P/3 is receipt issued by one Darshan Singh, which is dated 2-4-2004, wherein it has been mentioned that he has received a sum of Rs.250/- as transportation charges for the month of April, 2004 for carrying Alisha to her school. Ex.P/4 is letter dated 11-3-1996 which has been written by Mahesh Kumar Gupta father of the respondent on the letter pad of M/s. Ramchandra Maheshkumar. Along with the letter biodata of the respondent was sent to the father of the petitioner, in which education of the respondent is shown as M.Com and the occupation of the respondent is shown as engaged in family business of distribution of fertilizers, pesticides, ropes and other agricultural implements.

10. Petitioner has also examined Bhanwarlal AW-1, who is employee of Commercial Tax Department and petitioner has examined herself as AW-2. Apart from this petitioner has also examined Sarla AW-3.

11. Respondent has filed the copy of judgment and decree dated 30-6-2003, whereby the marriage solemnized between the parties was dissolved as Ex.D/1. Ex.D/2 is judgment dated 1-7-2002 passed by JMFC, Ujjain, whereby respondent was acquitted for an offence punishable under section 498-A. In oral evidence respondent has examined himself.

12. From perusal of the record it appears that petitioner is taking best possible care for her daughter Alisha by giving her good education. Petitioner herself has come in witness box and has stated that respondent is having a shop at a prime location at Ujjain, from where respondent is earning Rs.20,000/- per month. On this part of the statement, there is no cross-examination on behalf of respondent. It is true that respondent has stated that respondent is serving in the same shop. Only question which has to be answered is what is the status of respondent in that shop i.e. whether he is an employee or owner? To support this fact neither any account of shop has been filed nor Mahesh Kumar Gupta father of respondent has came in witness box. On the contrary the document Ex.P/4 which is a letter written by Mahesh Kumar Gupta himself is on record whereby on 11-3-1996 the proposal for marriage was sent along with biodata of respondent wherein it has been stated that the respondent is engaged in family business, which goes to show that in the shop where the respondent is working, the status of respondent is not of an employee but is a family business.

13. The petition for maintenance was filed in the year 1999. Considerable time has lapsed. The needs of Alisha who was aged one year at that time, is growing day by day. Undoubtedly the petitioner was the wife of respondent who belongs to a trading family. In the facts and circumstances of the case, this Court is of the view that the amount awarded by the learned Court below is grossly inadequate and the petitioner is entitled for enhancement. Looking to the sale of the shop which is evident from Ex.P/1 according to which the sale of the shop in the year 1997-98 was Rs.41,87,366.53 and keeping in view the prayer which was made by the petitioner in the year 1999, wherein it was prayed that Rs.3,000/- per month maintenance be awarded, this Court is of the view that a sum of Rs.2,500/- each will be a proper amount for petitioner and her daughter Alisha, so that the petitioner may be able to maintain herself and her daughter in a best possible manner and her education should not be affected adversely in any manner.

14. In view of this, petition filed by the petitioner is allowed and the petition filed by the respondent stands dismissed with a further direction that in case of default the respondent shall be further liable for payment of interest @ 12% pa. It is also made clear that this amount of Rs.5,000/- shall be payable w.e.f. 1st July, 2008. It is also directed that the petitioner shall maintain the account of expenses.

15. With the aforesaid observations, both the petitions stand disposed of. A copy of this order be placed in the record of Cr. R. No.366/05.

Order accordingly.