Vimla vs State Of U.P. & Others
2016 Latest Caselaw 7525 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44                                                                  AFR
 

 
Case :- CRIMINAL REVISION No. - 3498 of 2007 
 

 
Revisionist :- Vimla 
 
Opposite Party :- State Of U.P. & Others 
 
Counsel for Revisionist :- Rajesh Kumar Srivastava,Manoj Kumar Srivastava 
 
Counsel for Opposite Party :- Govt. Advocate 
 

 
Hon'ble Amar Singh Chauhan,J. 

The revisionist Smt. Vimla Devi has preferred this criminal revision against the judgement and order dated 20.7.2007, passed by the Principal Judge, Family Court, Bareilly in Criminal Case No. 431 of 2005 (Smt. Vimla Devi vs. Om Prakash) under section 125 Cr.P.C., Police Station Fareedpur, District Bareilly whereby learned Judge awarded maintenance allowance to the tune of Rs. 500/- each to the minor sons Monoj and Gopal but the claim of the revisionist-applicant Vimla Devi moved under section 125 Cr.P.C. for maintenance, was rejected.

The facts which are requisite to be stated for adjudication of this revision are that an application under section 125 Cr.P.C. was moved by Smt. Vimla Devi on behalf of herself and her minor sons Manoj and Gopal claiming maintenance on the ground that the marriage of applicant-revisionist Smt. Vimla Devi was solemnized with opposite party no. 2 Om Prakash 16 years ago according to Hindu rites and rituals. From the wedlock, two sons Manoj and Gopal and one daughter were born in which the daughter was residing with her husband Om Prakash. Her husband is doing work of tailoring at large scale in Delhi. He raised a demand of Rs. 1,00,000/- so as to he would open shop in the city Bareilly. On non-fulfillment of the demand, she was tortured to the extent that he did not provide food for many dates to her regularly. After the death of her father, the husband and her in-laws started to harass more and used to beat by kick and feast and after snatching jewellery she was ousted from the house of her husband and extended threat that he will not allow to live her unless she brought Rs. 1,00,000/- from her Mika. Applicant-revisionist is residing in her Mika and opposite party refused to maintain her and neither take care of her nor any single penny has been given for maintenance. She is unable to maintain herself as she has no means of income whereas opposite party earned Rs. 25,000/- per month from tailoring. The opposite party in his written objection denied the version given in the application under section 125 Cr.P.C levelled allegation that she insists to live in her Mika. He neither demanded Rs. 1,00,000/- nor beaten her and she extended threat to implicate him in dowry case. He has gone to his Sasural to fetch her but in persuasion of mother and brother she did not come with him. He has no means of income. He is doing agriculture work with his father.

After hearing the parties learned Principal Family Judge and evaluating the evidence adduced rejected the claim of applicant-revisionist but granted maintenance to the minor sons Manoj and Gopal to the tune of Rs. 500/- each.

Feeling aggrieved, the revisionist came up before this Court in this revision.

In spite of repeated call none appears from other side whereas learned AGA is present.

Heard and perused the record.

It is stated in the memo of the revision that learned Principal Judge, Family Court has not applied his mind and passed the impugned order. The revisionist has no source of income to maintain herself and opposite party no. 2 is earning Rs. 25,000/- per month from tailoring at large scale. The revisionist is ready to live with her husband but the opposite party refused to fetch her.

In this revision, the main point of determination is that whether the opposite party despite having sufficient means neglect or refuse to maintain his wife. More than there is sufficient reasons before the revisionist to live separate from her husband.

Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.:

Order for maintenance of wives, children and parents

125. (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 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."

From perusal of the aforesaid provisions, it is clear that an order under section 125 Cr.P.C. can be passed, if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife.

Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The Court held as under:

"Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636.

A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.

In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:

"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."

After going through the record, it is clear that revisionist has left the house of her husband on being harassed and tortured for demand of dowry as Rs. 1,00,000/- for opening the business of tailoring in the city Bareilly. Almost no wife is supposed to leave the house of the husband without any rhyme or reason. Wife's right to claim maintenance can be denied in the circumstances only provided under section 125(4) Cr.P.C. which runs as follows:

Section 125(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.

The Hon'ble Supreme Court in Laxmi Bai Patel vs. Shyam Kumar Patel 2002 (44) ACC 1102 SC has held as under:

"To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the 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. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under sub-section (4) of the said section."

Principle is that when prima facie marriage is established, maintenance should be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The object is to achieve social purpose and to prevent vagrancy and destitute.

The applicant-revisionist is trying to get maintenance through this application since 2005 but not even a single penny in lieu of maintenance has been received from her husband. The proceeding under section 125 Cr.P.C. provides a speedy remedy for supply of food, clothing and shelter to the deserted wife whereas the opposite party no. 2 has failed to establish that applicant-revisionist without any sufficient reason refused to live with him.

In view of what has been indicated above, the impugned order passed by the Principal Judge, Family Court, Bareilly is not justified. Therefore, the impugned order is not liable to be sustained.

The revision is partly allowed.

The impugned order, passed by the Principal Judge, Family Court, Bareilly in Criminal Case No. 431 of 2005 (Smt. Vimla Devi vs. Om Prakash) is hereby set aside to the extent of refusal to grant maintenance to the revisionist and the matter is remanded back to the court concerned for decision afresh expeditiously after hearing the both parties. The impugned order with respect to grant of maintenance to the minor sons shall remained intact.

Office to communicate this order to the court concerned for compliance.

Order Date:- 13.12.2016

Puspendra