Nirajkumar Kapurchand Jain vs Smt. Sweeti W/O. Nirajkumar Jain
2017 Latest Caselaw 4371 Bom

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                                       1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

     CRIMINAL REVISION APPLICATION NO.33 OF 2017
                        AND
     CRIMINAL REVISION APPLICATION NO.34 OF 2017




CRIMINAL REVISION APPLICATION NO.33 OF 2017

Nirajkumar Kapurchand Jain
Age 36 years, Occupation Service
R/o 104, Raufbhai Ki Galli, 
Main Bazar, Jahagirabad, Bhopal (MP).    ..... Applicant.

                                ::   VERSUS   ::

Smt. Sweeti w/o Nirajkumar Jain
Age 35 years, Occupation Household
R/o C/o Madhultankar, Satranjipura,
Hanuman Mandir, Nagpur.                        ..... Non-applicant.



CRIMINAL REVISION APPLICATION NO.34 OF 2017

Nirajkumar Kapurchand Jain
Age 36 years, Occupation Service
R/o 104, Raufbhai Ki Galli, 
Main Bazar, Jahagirabad, Bhopal (MP).    ..... Applicant.

                                ::   VERSUS   ::


                                                                         .....2/-


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                                    2

1. Smt. Sweeti w/o Nirajkumar Jain
Age 35 eyars, Occupation Household.

2. Master Aryan s/o Nirajkumar Jain
Age 7 years, since minor, through natural
guardian mother Smt. Sweeti Nirajkumar
Jain (i.e. the non-applicant No.1)

Both R/o c/o Madhu Itankar,
Satranjipura, Hanuman Mandir, Nagpur.    ..... Non-applicants.

================================================================
           Shri P.U. Nandanwar, Counsel for the applicant.
           Shri Vikrant Pandey, Counsel for the non-applicants.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 12, 2017.

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel Shri P.U. Nandanwar for

the applicant and learned counsel Shri Vikrant Pandey for the

non-applicant.

2. These two revision applications arise out a

common judgment passed by learned Judge of the Family

.....3/-

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Court, Court No.3, Nagpur dated 3.12.2016 by which learned

Judge of the Family Court allowed Petition No.E-169 of 2013

and Petition No.E-103 of 2014 which were filed before the said

Court under Section 125 of the Code of Criminal Procedure

for maintenance by present non-applicants. By the impugned

judgment, learned Judge of the Court below has allowed both

petitions and directed that applicants, in those proceedings

under Section 125 of the Code of Criminal Procedure, are

entitled to receive Rs.7,000/- per month by way of maintenance

from the present applicant.

3. The contention of learned counsel Shri

Nandanwar for the applicant is that it is the wife who has

withdrawn her co-habitation from the company of applicant

and, therefore, she is not entitled for maintenance. He also

submits that in fact a petition under Section 9 of the Hindu

Marriage Act, 1955 for restitution of conjugal rights was filed

.....4/-

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in the competent Court at Bhopal and learned Judge of the

said Court on 16.1.2016 allowed the said petition. He,

therefore, submits that wife, who has withdrawn herself from

the company of applicant herein, is not entitled for

maintenance.

4. Petition No.E-169 of 2013 was filed on behalf of

minor Aryan. The present applicant is not challenging

paternity. The said case was also contested by present

applicant.

5. It is the duty of an every father to maintain his

minor child. The father cannot run away from the said

responsibility nor he can be allowed to skip his obligation to

maintain his son or daughter and father is duty bound to

provide all facilities including better facilities for education

and health for his minor son or daughter.

6. In the present case, it is established on record that

.....5/-

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from 12.6.2012 present applicant, who is a father of minor son

Aryan, has not shouldered his responsibility to provide even

the basic amenities to his son. It is not the case of

applicant/father that he has provided any financial aid to his

wife in order to show that he has shouldered his

responsibility as a father. In that view of the matter, present

applicant cannot agitate the issue before this Court on the

ground that his wife has withdrawn her company from his

society. The wife may withdraw the company, that does not

absolve responsibility of the father to provide maintenance to

his son or daughter.

7. Another petition i.e. Petition No.E-103 of 2014 was

filed by wife. That petition was also filed under Section 125 of

the Code of Criminal Procedure. The said petition was hotly

contested by present applicant/husband. The main contention

of present applicant/husband is that on 12.6.2012 on her own

.....6/-

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wife has withdrawn herself from the company of husband

and, therefore, he was required to file a petition under

Section 9 of the Hindu Marriage Act on 2.7.2012 which was

decreed. It is pointed out on behalf of wife that the said order

of granting decree of restitution of conjugal rights is

questioned before the High Court at Jabalpur and the matter

is pending. The said fact is not denied by the counsel for

applicant. In that view of the matter, finding recorded by

learned Judge of the Court below that wife has withdrawn her

company from the husband has not attained finality. Suffice

to say that, said order of granting decree of restitution of

conjugal rights was passed behind the back of wife. Though

an attempt is made on the part of learned counsel for the

applicant that summon of that particular case was served

upon wife, it is always open for wife to supplement reason for

her absence in appeal pending before the Madhya Pradesh

.....7/-

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High Court.

8. According to wife, present applicant is running

two shops of readymade garments by name "Puja Garments"

and "Aryan Garments" at main market Jahagirabad, Bhopal.

According to wife, present applicant earns Rs.1.00 Lac per

month. Learned counsel Shri Nandanwar for the applicant

submits that applicant is not the owner of the said shops. The

said shops are closed before 2015. However, record shows

that "Aryan Garments", even as per the written statement, is

owned by brother of present applicant and he is serving as a

servant in the said shop earning Rs.4,000/-. During the course

of evidence before the Court below, wife has produced a

document issued by the Labour Commissioner at Bhopal,

which shows that "Puja Garments" is in the name of present

applicant and entries are for the year 2011-15. When such

documentary evidence is available on record showing that

.....8/-

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present applicant is the owner of the said shop and when

applicant wishes to dispute about his ownership, burden was

on the shoulder of present applicant to produce documents or

other evidence in rebuttal. In absence of any evidence in

rebuttal, in my view, learned Judge of the Court below has

rightly reached to the conclusion that present applicant is the

owner of the Garment Shop.

9. Learned Judge of the Court below has recorded a

finding that income of present applicant must be in between

Rs.25,000/- and Rs.30,000/- since applicant has taken a stand

that he is not the owner and he has already closed his shop

which is proved to be incorrect, it was for applicant to

establish income which he derives from the shop. The Court

cannot expect that wife will be able to give exact amount of

income from the shop. Therefore, it will always a guesswork.

In my view, learned Judge of the Court below has guessed

.....9/-

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income even on the lower side i.e. in between Rs.25,000/- and

Rs.30,000/-.

10. Looking to sky racketing prices of essential

commodities and the fact that the boy is only 6 years of age, a

period in which he requires more attention on every aspects

of his life, in my view, Rs.7,000/- is also not on higher side.

Since no case is made made, the criminal revision

applications are dismissed with costs of Rs.25,000/- (rupees

twenty five thousand only).

JUDGE

!! BRW !!

...../-