Delhi High Court
Sehnaz vs Nazim on 18 February, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 526/2018
Date of Decision: 18.02.2020
IN THE MATTER OF:
SEHNAZ ..... Petitioner
Through: Mr. Vijay Kinger and Mr. Varun
Pawar, Advocates with petitioner in person
versus
NAZIM ..... Respondent
Through: Mr. Nasimuddin, Advocate with
respondent in person
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
MANOJ KUMAR OHRI, J. (ORAL)
1. The present application is directed against the order dated
11.05.2018 passed by the Principal Judge, Family Court, Karkardooma
Courts, Delhi whereby the petitioner's application under Section 125
Cr.P.C. for grant of maintenance was dismissed.
2. Learned counsel for the petitioner submits that he has assailed the
impugned order on the ground that the family court erred in recording a
finding that the allegations of the respondent have remained unrebutted.
He further contends that the finding recorded by the Family Court that
the petitioner has left matrimonial home on her own without any reason,
is incorrect. He has referred to the complaint dated 15.01.2015 filed by
the petitioner before the CAW Cell, Delhi.
3. It is informed that the aforesaid complaint has resulted into a
chargesheet.
4. In the petition, the complaint as well as her affidavit, the petitioner
has stated that the marriage between the petitioner and the respondent
was solemnised on 16.08.2014. Subsequently, the petitioner was
harassed on account of demand of dowry by the respondent as well as his
family members. It was alleged that there was dowry demand of
Rs.1,00,000/- and a motorcycle. It was further alleged that the petitioner
was threatened that unless the dowry demands are met, the harassment
would continue. On 24.10.2014, the petitioner was physically beaten and
thrown out of the house. She was told that unless the demands of
Rs.1,00,000/- and a motorcycle are met she could not be allowed to enter
the house.
5. Per contra, learned counsel for the respondent has supported the
impugned order. He submits that the respondent, in his evidence, had
deposed that the petitioner had actually left on 22.10.2014 i.e. two days
prior to the alleged incident of beating, along with her brother and took
all her jewellery articles with her. He submits that the said allegation has
remained unrebutted by the petitioner in the cross-examination.
6. I have heard learned counsels for the parties and have also gone
through the case records.
7. The petitioner in her evidence, by way of an affidavit, has clearly
stated that there was continuous demand of dowry and that she was
harassed with respect to demand of dowry by the respondent as well as
by his family members. She has specifically mentioned the incidents
prior to the filing of the complaint dated 15.01.2015. A copy of the
complaint was exhibited as Ex. PW-1/4 and the consequent FIR as
Ex. PW-1/5. Even in the respondent's cross-examination, a
suggestion was given regarding the incident of physical beating that
occurred on 24.10.2014. The respondent has not denied the filing of the
complaint by the petitioner as well as the consequent registration of the
FIR.
8. Section 125(4) Cr.P.C. debars the wife, who is entitled to receive
an allowance for maintenance or interim maintenance, if she refuses to
live with her husband without any sufficient reason whereas in the
present case, the testimony and the supporting material placed on record
in the form of complaint and the FIR show that the petitioner was
harassed continuously for dowry.
9. In the present case, there is evidence on record to show that the
petitioner had to leave the matrimonial home on account of physical as
well as mental harassment or on account of dowry demand. The
petitioner has specifically deposed that she had to leave the matrimonial
home on account of harassment. The complaint as well as FIR have been
proved on record.
10. I deem it profitable to reproduce the observations of Supreme
Court in Sunita Kachwaha & Ors. v. Anil Kachwaha reported as (2014)
16 SCC 715 as follows:-
"6. The proceeding under Section 125 Cr.P.C. is
summary in nature. In a proceeding under Section 125
Cr.P.C., it is not necessary for the court to ascertain as to
who was in wrong and the minute details of the
matrimonial dispute between the husband and wife need
not be gone into. While so, the High Court was not right
in going into the intricacies of dispute between the
appellant-wife and the respondent and observing that the
appellant-wife on her own left the matrimonial house and
therefore she was not entitled to maintenance. Such
observation by the High Court overlooks the evidence of
appellant-wife and the factual findings, as recorded by
the Family Court.
7. Inability to maintain herself is the pre-condition for
grant of maintenance to the wife. The wife must positively
aver and prove that she is unable to maintain herself, in
addition to the fact that her husband has sufficient means
to maintain her and that he has neglected to maintain
her. In her evidence, the appellant-wife has stated that
only due to help of her retired parents and brothers, she
is able to maintain herself and her daughters. Where the
wife states that she has great hardships in maintaining
herself and the daughters, while her husband's economic
condition is quite good, the wife would be entitled to
maintenance.
8. The learned counsel for the respondent submitted that
the appellant-wife is well qualified, having post graduate
degree in Geography and working as a teacher in
Jabalpur and also working in Health Department.
Therefore, she has income of her own and needs no
financial support from respondent. In our considered
view, merely because the appellant-wife is a qualified
post graduate, it would not be sufficient to hold that she is
in a position to maintain herself. Insofar as her
employment as a teacher in Jabalpur, nothing was placed
on record before the Family Court or in the High Court
to prove her employment and her earnings. In any event,
merely because the wife was earning something, it would
not be a ground to reject her claim for maintenance."
To the similar effect is the decision of a Coordinate Bench of this Court
in Krishna Dhawan v. State and Another reported as 2012 SCC OnLine
Del 2048.
11. In view of the above discussion, the family court erred in returning
its finding that the respondent's allegations have gone unrebutted. In the
opinion of this Court, the findings recorded by the Family Court are
without appreciating the petitioner's testimony and supporting document
on record. The impugned order is set aside. The matter is remitted back
to the family court to hear the learned counsels for the parties afresh.
12. List before the family court on 27.02.2020.
13. With the above direction, the petition is disposed of.
(MANOJ KUMAR OHRI)
JUDGE
FEBRUARY 18, 2020
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