Dhirendra Kumar Upadhyay Vs Juhi Upadhyay and Others

Amitav Kumar Gupta, J.@mdashThis revision application is directed against the order dated 18.04.2015 passed by the Principal Judge, Family Court, Palamau in M.P. Case No. 96 of 2013 under section 125 Cr.P.C. whereby the petitioner was directed to pay maintenance @ Rs. 7,500/- per month to opposite party Nos. 1 & 2 in the present revision.

2. Learned counsel for the petitioner has submitted that Section 125 (4) mandates that the wife who refuses to live with her husband should establish a sufficient cause and reason to reside separately. In the absence of sufficient cause or reason she is not entitled to any maintenance, whatsoever. Learned counsel has drawn attention to the deposition of O.P. No. 2, i.e., the mother of the O.P., and submitted that O.P. No. 2 has stated that the dowry was demanded in her presence and the petitioner had assaulted the O.P., but in cross-examination, she has stated that she has not remember the date when the dowry demand was made or when her daughter (O.P.) was assaulted. It is submitted that the O.P. No. 2 examined as P.W. 3, has deposed in her examination-in-chief that her husband tried to kill her and her minor daughter. That the petitioner had illicit relationship with his Bhabhi, due to which she was being tortured and had to undergo mental agony. However, in cross-examination, P.W.-3 (O.P.) had deposed that she does not remember the date when dowry demand was made or the date on which she was assaulted. P.W.-3 admitted that she did not lodge any case against the petitioner for assaulting her and for the dowry demand.

It is argued by the learned counsel that the allegation made by O.P. No. 2 that petitioner has illicit relation with Bhabhi reveals the perverse bent of mind of O.P. No. 2. That in fact, the petitioner respects and regards his Bhabhi like his mother. It is urged that no material evidence has been brought on record to establish that O.P. No. 2 has any sufficient cause or reason to reside separately. Thus, the maintenance allowed is not in consonance with the provision of Section 125 (4) Cr.P.C. which controls the provisions of Section 125 Cr.P.C. for grant of maintenance. It is submitted by the learned counsel that the petitioner had filed a case under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights whereafter the present case has been filed by the opposite party No. 2, with the intention to harass and extort money from the petitioner. It is urged that the trial court has failed to appreciate that the petitioner had solemnized the second marriage with O.P., after the demise of his first wife so that his two daughters would get proper care and affection of a mother but the O.P., has not fulfilled the obligation and duty of a mother. It is contended that there is no evidence on record to prove the demand of dowry and torture, hence, the impugned order is fit to be set aside. Learned counsel has relied on the decision of this court in the case of Smt. Jhuma Gorai Vs. State of Jharkhand and Another, and submitted that in the present case, on request made by the petitioner an attempt was made by this court for reconciliation and despite the offer of the petitioner to keep the O.P. properly, the O.P. flatly refused to reside with him hence, she is not entitled to any maintenance and the aforesaid decision squarely covers the facts of the present case.

Learned counsel has also relied on the decision of this court in the case of Sukro Devi Vs. State of Jharkhand and Another, and submitted that in the said case, this Hon''ble court has held that when the wife voluntarily left the house of her husband without reasonable cause or excuse, and thereafter refused to live with her husband without any just cause then she was not entitled to maintenance.

On the above grounds, it is contended by the learned counsel that the impugned order is not tenable in law and on facts, however, the petitioner is always ready to pay the maintenance to the daughter but the quantum of maintenance granted by the trial court is on the higher side and should be reduced, considering the fact that the petitioner is saddled with the liabilities to provide for the maintenance and educational expenses of his two daughters and the maintenance to his parents. It is submitted that the petitioner in order to lead a happy life and in compliance to the wishes of O.P., had purchased ornaments for her, which would be evident from the Annexures, i.e., receipts but the O.P., has on her own accord left the company of the petitioner.

3. Per contra, learned counsel for opposite party, has contended that the notice of matrimonial suit alleged to be filed by the petitioner/husband was never served on the O.P. neither she has any knowledge about the said suit. That it would be evident from the deposition of the petitioner, examined as O.P.W.- 1 in the court below, wherein he has stated that the O.P. had illicit relation so he does want to reside with the petitioner. He also deposed that after marriage when the petitioner came to the matrimonial house she was already pregnant. It is argued that casting such aspersion on the wife, tantamounts to mental torture and cruelty. It is argued that the petitioner has filed a suit for divorce in Daltonganj courts which falsifies his claim that he wants to keep the O.P. with dignity and honour. It is submitted that during the proceeding O.P. had gone to reside with the petitioner, in obedience to the orders of the court, as she was willing to resume the conjugal life but the behaviour of the petitioner remained unchanged and he repeatedly assaulted and tortured the O.P.

It is urged by the counsel that the petitioner has admitted that he is bearing expenses of Rs. 10,000/- (ten thousand) for education of his two daughters born from the first wife and had admitted that he had purchased ornaments worth Rs. 45350/- for the O.P., this shows that he has sufficient means and income, hence, the question of reduction in the quantum of maintenance does not arise.

Learned counsel has relied on the decision in the case of Mst. Khatoon Vs. Mohd. Yamin, and submitted that in the aforesaid case it was alleged that the husband wrote a letter to his wife asking her to come back to him otherwise the said letter would be treated as divorce and the Apex Court held that this was a sufficient reason for the wife to refuse to live with her husband and she was entitled to the maintenance whereas in the instant case as it would be evident that the petitioner has made allegation to the extent of denying the paternity of the minor daughter and questioning the fidelity of O.P./wife. The aspersion cast by the petitioner shows that he does not have any respect or care for the dignity and honour of O.P./ wife.

Learned counsel submitted that in the case of Sunita Kachwaha Vs. Anil Kachwaha, , the Hon''ble Supreme Court has held that the proceeding under Section 125 Cr.P.C. is summary in nature and it is not necessary for the court to ascertain as to who was wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. The fundamental principle for granting maintenance is the inability of the wife to maintain herself.

It is contended that from the facts of the present case it is evident that the O.P. is unable to maintain herself as she does not have sufficient means of income and the petitioner has willfully neglected and refused to maintain the O.P. and her minor daughter. It is urged that the impugned order does not suffer from any illegality or infirmity and the revision is fit to be dismissed.

4. Heard. On perusal of the impugned order and the material on record, it is necessary to state that reconciliation was attempted, at the instance and submission of the petitioner that he wants to settle the matter. Thus, keeping in view that matrimonial dispute should be resolved, hence, the grievances of the parties were heard. However, the O.P., stated that the petitioner has incessantly cast aspersion on her character and made allegation to the extent that she was having illicit relation with her brother namely, Akash Kumar. She stated that she tried to resume the conjugal life but she was repeatedly assaulted and abused by the petitioner. She expressed apprehension of physical harm at hands of the petitioner. Accordingly, the decision, relied upon by the petitioner, in the case of Sukro Devi (supra) is not applicable to the facts of the present case.

The contention of the learned counsel that the court below has not given any finding regarding sufficient reason or just cause for O.P. to reside separately in terms of Section 125(4) Cr.P.C., hence she is not entitled to maintenance, is not acceptable, because it is admitted by the petitioner in his deposition (examined as O.P.W.-1 in the court below), wherein he has stated that the O.P. has illicit relation with her brother and he does not want to reside with the O.P. He stated that when the petitioner came to the matrimonial home, she was already pregnant. It is apparent that he has cast aspersion on the chastity of the O.P. and questioned the paternity of the minor daughter.

The production of the receipts regarding purchase of ornaments has been considered by the court below, which establishes the fact that the petitioner has other means of income, apart from the salary being drawn by him. The gross salary of the petitioner was Rs. 23,515/- as on 21.02.2014.

5. It is well settled that Section 125 Cr.P.C. has been incorporated, as a measure of social justice, the primary and dominant object being that the dependent wife or children are not forced to lead a life of starvation or beggary. It casts a moral obligation upon the husband / father to provide maintenance to the wife and child. It is not disputed that the petitioner is drawing the salary as aforementioned, accordingly the order granting gross maintenance of Rs. 7,500/- per month as maintenance allowance to O.P. Nos. 1 and 2 i.e., the wife and minor daughter, is reasonable and justified and does not merit any interference by this court.

6. The petitioner shall pay the ordered maintenance amount in terms of the order of the court below within three months from the date of this order.

7. In the result, the revision stands dismissed.