Chattisgarh High Court
Malik Ram Sahu vs Smt. Neelam Sahu on 7 December, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 1433 of 2019
• Malik Ram Sahu S/o Dev Nath Sahu Aged About 28 Years R/o Village
Tarenga, P. S. Bhatapara Rural District Baloda Bazar-Bhatapara
Chhattisgarh Present Address House Of Sandi Ji, Near Nagar Palika,
Beergaon, P. S. Urla, Raipur District Raipur Chhattisgarh, District :
Raipur, Chhattisgarh --- Applicant.
Versus
1. Smt. Neelam Sahu W/o Shri Malik Ram Sahu Aged About 24 Years D/
o Bulaki Ram Sahu, R/o House Of Bulaki Ram Sahu, S/o Shri Lakhan
Lal Sahu, Near Goura Chowk, Shrinagar, Khamtarai, P. S. Khamtarai,
Raipur Tahsil And District Raipur Chhattisgarh, District : Raipur,
Chhattisgarh
2. Narayan Sahu S/o Malik Ram Sahu Aged About 5 Years R/o House Of
Bulaki Ram Sahu, S/o Shri Lakhan Lal Sahu, Near Goura Chowk,
Shrinagar, Khamtarai, P. S. Khamtarai, Raipur Tahsil And District
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
---- Respondent
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For Applicant : Mr. Ravindra Sharma, Adv.
For Respondent No.1 : Mr. S.P. Sahu on behalf of Mr. A.D.
Kuldeep, Adv.
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Hon'ble Shri Justice Deepak Kumar Tiwari
Order On Board
07.12.2022
1. With the consent of the parties, the matter is heard finally.
2. This revision has been filed against the order dated 14.10.2019
passed by Second Additional Principal Judge, Family Court,
Raipur in Misc. Criminal Case No.525/2015 whereby the
application for maintenance under Section 125 Cr.P.C. filed by the
respondents was allowed and the applicant was directed to pay
Rs.2000/- to respondent No.1 - wife and Rs.1000/- to the
respondent No.2 - minor son towards maintenance.
3. It is undisputed that marriage of the applicant was solemnized with
respondent No.1 on 02.03.2014 and out of their wedlock, in the
year 2015, respondent No.2 was born. It is also undisputed that
the marriage of the real sister of respondent No.1 was solemnized
with the real brother of the applicant. It is pleaded that after the
marriage, the applicant and their family members started harassing
respondent No.1 for bringing less dowry and also beaten her. She
pleaded that the applicant used to consume liquor and abused her
and beaten her in the drunken condition. She further pleaded that
brother of the applicant has lodged a false complaint against her
sister. Further, respondent is unable to maintain herself and her
child as she is not having any source of income and at present the
applicant is working in plastic factory and is earning Rs.20,000/-
per month. Respondent/wife and her sister namely Tarkeshwari
Sahu have also a lodged complaint against the applicant and his
brother namely Mohan Sahu and their family which has been
exhibited vide Ex.P-1 and Ex.P-2.
4. In reply, the applicant/husband has denied the allegations made by
the wife and asserted that without any sufficient cause respondent
No.1 is living separately. The applicant has also filed an
application under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights before the Additional District Judge,
Bhatapara in Civil Suit No. H-22/2015 and decree was passed in
favour of the applicant/husband vide judgment dated 18.11.2016.
In such proceedings respondent/wife has not participated and ex
parte judgment was passed.
By the impugned order, upon appreciation of the evidence,
the Family Court has allowed the application filed by the
respondents and fixed maintenance of Rs.3000/- per month.
5. Shri Sharma, learned counsel for the applicant/husband would
submit that respondent/wife is living separately without any rhyme
or reason. He further submits that even after passing of decree of
restitution of conjugal rights, nor the wife is living with him neither
she has preferred any appeal to challenge the said order. He
submits that when the decree for restitution of conjugal rights is
still in existence and wife has declined to comply with the decree,
the same by itself is sufficient to establish the fact that the wife is
living separately without any proper or reasonable cause.
Therefore, she is not entitled to get any maintenance. He also
submits that in the order dated 27.01.2020 passed CRR
No.510/2018 passed by this High Court which has been filed
against the wife by the brother of the applicant, the Court had
remanded back the matter with a direction to pass an appropriate
order and maintenance granted to the real sister of the respondent
No.1 namely Tarkeshwari was set aside.
6. Counsel for the applicant would further submit that granting of
decree under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights itself affects the maintenance application filed
under Section 125 Cr.P.C. The similar matter in issue is pending
before the Supreme Court in Special Leave to Appeal (Crl)
No.8994/2019, Subrat Kumar Sen Vs. State of UP and anr., in
which in the order dated 03.10.2019, considering the conflicting
views taken by the courts in proceedings under Section 125
Cr.P.C. and Section 9 of the Hindu Marriage Act, the amount was
reduced to Rs.10,000/- from Rs.20,000/- per month. In the instant
case also, the wife is living separately even after passing of the
order under Section 9 of the Hindu Marriage Act therefore, the
impugned order is liable to be quashed or, in alternative, the
maintenance amount may be reduced to the 50%.
7. On the other hand, learned counsel for the respondents would
submit that impugned order is well merited and the same does not
call for any interference by this Court.
8. Heard learned counsel for the parties and perused the documents
annexed with the petition.
9. It is undisputed that the ex-parte judgment and decree for
restitution of conjugal rights under Section 9 of the Hindu Marriage
Act has been passed in favour of the applicant/husband in HMA
Case No.H-22/2015 dated 18.11.2016 and such decree is still in
existence and not challenged by the respondent/wife. In the
impugned order, the Family Court has discussed the evidence that
the respondent No.1/wife was ousted from the matrimonial house
for bringing less dowry, for which she has lodged a complaint case
along with her sister before the police vide Ex.P-1 and Ex.P-2. The
same are produced before this Court by the counsel for the
petitioners.
10. Further, in paragraph 17 of the impugned order dated 14.10.2019
the contention of the wife about the fear of life to reside with the
husband is mentioned. It is also not disputed that Tarkeshwari who
is the real sister of the respondent No.1 and wife of the brother of
the applicant namely Mohan Sahu is living separately due
harassment made in the matrimonial house. So in such
circumstances, when the wife alleged that she is in fear or danger
in the matrimonial house, and therefore, she is living separately,
and considering that proceeding under Section 125 Cr.P.C. which
is summary in nature, this Court does not find any error in the
impugned order. It is also well settled that the husband is required
to pay maintenance even by the physical labour and he could not
avoid his obligation except on legally permissible ground.
11. In view of the aforesaid discussion, this Court does not find any
infirmity or illegality in the impugned order warranting any
interference by this Court and the maintenance granted to the wife
and her son to the tune of Rs.2000/- and Rs.1000/-, respectively
does not appear to be on higher side specially considering the cost
of living in the society.
12. Accordingly, the revision is dismissed.
Sd/-
(Deepak Kumar Tiwari)
Judge
Ajay
