Kshitindra Mohan Mishra vs Smt. Amrita Shukla
2021 Latest Caselaw 8518 MP

                             1


     HIGH COURT OF MADHYA PRADESH AT JABALPUR

      SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY

                  M.Cr.C No. 8621/2021

            Kshitindra Mohan Mishra and others
                               Vs.
                     Smt. Amrita Shukla

____________________________________________________
       Shri Naveen    Dubey,     learned   counsel   for   the
       petitioner.

       Shri Amit Seth, learned counsel for the respondent.



       Arguments heard on      : 20.09.2021
       Order delivered on      : 09.12.2021




                         ORDER

Petitioner No.1 is husband and petitioners No.2

and 3 are respectively the mother-in-law and sister-in-law of

respondent. The petitioner No.1 and respondent's marriage

was solemnized on 18.04.2016 and a male child has born

out of the wed lock on 27.02.2018.

2. The respondent/wife filed an application under

Section 23(1) of the Protection of Women from Domestic

Violence Act, 2005 alleging that after the marriage she was

harassed and beaten up and thrown out of the house on

account of demand of dowry. She, therefore, filed a

complaint before the Police Station, City Kotwali, Rewa

under Section 498-A of the I.P.C. read with Section ¾ of the

Dowry Prohibition Act. To save himself and as a counter

blast the petitioner then filed an application under Section

9 of the Hindu Marriage Act for restitution of conjugal

rights. It was stated that to save her marriage, she

compromised on 13.07.2019 before the Lok Adalat and

agreed to go back with her husband. However, when she

went back on 14.07.2019 with her 16 months old son to the

petitioners' house, petitioners No.1 and 2 refused to

acknowledge her son and slapped and kicked her out of the

house. A report of this incident was lodged before the

Police Station, Kotwali on the same day. She also asked for

interim maintenance for herself and for her minor son,

stating that petitioner No.1 is working as Assistant Grade III

in the office of Development Commissioner, Panchayat

Bhawan, Bhopal with a salary of Rs.45,000/- per month. He

also earns from rental income and has some land in his

name, whereas petitioner No.2, mother-in-law is a

pensioner. The petitioners filed reply to this application

contending that respondent wife is posted as Patwari and

able to maintain herself. She has left the matrimonial

house without any reason and on her own accord, hence

not entitled to any relief.

3. The learned Judge rejected the application for

interim maintenance vide order dated 14.10.2019. Being

aggrieved, the respondent/wife challenged the order dated

14.10.2019 in Cr.A. No.169/2019. The petitioners did not

appear despite being served. The learned Judge, therefore,

proceeded ex-parte against the husband and after

appreciation of documents on record, set aside the order of

trial Court on the ground that the trial Judge has found the

wife not entitled to any interim maintenance only on the

assumption that the wife being a Patwari must be getting

the salary and House Rent Allowance and the fact that she

has asked for maintenance for her minor son has totally

been overlooked. He further granted Rs.3,000/- per month

as interim maintenance to the wife, Rs.2,000/- per month to

minor son and Rs.2,000/- per month as house rent vide

order dated 17.03.2020. Aggrieved by the aforestated

order, the petitioner/husband is before this Court.

4. The contention of learned counsel for the

petitioners is that the order impugned was passed in the

absence of petitioner-husband without appreciating the

reply of husband, which was available on record. It was

stated that the Court was incorrect in assuming that notice

was served on the petitioner-husband and the Court

wrongly relied on the provision of Section 27 of the General

Clause Act read with Order 5 Rule 9, sub-rule 5 of C.P.C. and

assumed that notice was served on the correct address and

proceeded exparte and without giving any opportunity of

hearing to the petitioner-husband, passed the impugned

order. It is contended that the petitioner/husband was on

training from 01.12.2019 to 15.02.2020 in Accounts

Training Institute, Bhopal and not available on the address

at the time when the notice was said to be served as

evident from the letter dated 04.12.2019 appended to the

petition as Annexure P-9. It is urged that petitioners are

deprived of valuable right of raising their defence before

the appellate Court and ex-parte held liable for payment of

maintenance.

5. Per contra, the respondent has raised the

preliminary objection stating that the present petition

under Section 482 of Cr.P.C. is not maintainable as statutory

remedy of appeal under Section 25(2) of the Protection of

Women from Domestic Violence Act, 2005 is available to

the petitioners. Counsel has relied on the judgment of

Orissa High Court in Criminal Case No.2633/2015 Shridhar

Sahu and others Vs. State of Orissa and others.

6. Heard the learned counsel for the parties and

perused the record.

7. The objection of respondent regarding

maintainability of instant petition cannot be sustained for

the reason that Section 25(2) of the Act, 2005 provides for

alteration/revocation/modification of any order passed by

the Magistrate. Once the lower Court order is modified in

appeal, such order in view of 'doctrine of merger', merged

with the appellate Court's order and lost its existence in

isolation. As such, the Magistrate has become functus

officio to revoke or modify that order.

8. On perusal of the order-sheet dated 10.01.2020,

filed as Annexure P-1 to this petition, it is evident that on

05.12.2019 and 28.12.2019, the notices were issued by

Registered mode to these petitioners on the address

mentioned therein. The postal receipts in this regard are

available on record. Since no one appeared on behalf of

the petitioners when the matter was taken up on

10.01.2020, the learned Judge keeping in view the

provision of General Clause Act read with Order 5 Rule 9,

sub-rule 5 of C.P.C. considered that the service has been

duly effected on the parties and proceeded exparte against

the petitioners.

9. Section 27(1) of the General Clauses Act, 1897

provides that where any Central Act or Regulation made

after the commencement of this Act authorizes or requires

any document to be served by post, whether the

expression "serve" or either of the expressions "give" or

"send" or any other expression is used, then, unless a

different intention appears, the service shall be deemed to

be effected by properly addressing, pre-paying and posting

by registered post, a letter containing the document, and,

unless the contrary is proved, to have been effected at the

time at which the letter would be delivered in the ordinary

course of post.

10. Rule 12 of the Protection of Women from

Domestic Violence Rules, 2006 also provides for manner in

which service of notice shall be made.

Rule 12(2)(c) and (d) of the Rules, 2006 provides thus:-

12. Means of service of notices:-

(a)..........

(b).........

(c) For serving the notices under section 13 or any other provision of the Act, the provisions under Order V of the Civil

Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be adopted.

(d) Any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of the Civil Procedure Code, 1908 (5 of 1908) or Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act.

11. Order 5 Rule 15 of C.P.C. provides that where in

any suit the defendant is absent from his residence at the

time when the service of summons is sought to be effected

on him at his residence and there is no likelihood of his

being found at the residence within a reasonable time and

he has no agent empowered to accept service of the

summons on his behalf service may be made on any adult

member of the family, whether male or female, who is

residing with him.

12. In the instant case, the record shows that notice

by registered post was sent on both the addresses at

Bhopal as well at Rewa. The petitioners have not disputed

the correctness of the address on which the notice was

served. Their only contention is that petitioner

No.1/husband was not available on the said address from

01.12.2019 to 15.02.2020, when the notices were served.

Letter dated 14.12.2019 (Anneuxre P-9) establishes that

petitioner No.1/husband, posted as Assistant Grade III in

the office of Development Commissioner, Bhopal was

relieved to join for training at the Accounts Training

Institute, Bhopal. Both these offices/Institutes are situated

at Bhopal. This training was only till 15.02.2020. During

this period, petitioner/husband's residence was not

changed. The order sheets filed as Annexure P-1 shows

that after 10.01.2020, when the petitioners were declared

exparte, the matter was listed on 04.02.2020, 11.02.2020,

19.02.2020, 13.03.2020 and 16.03.2020 when the final

arguments were heard and the order was delivered on

17.03.2020. Undisputedly, the petitioner No.1/husband and

other petitioners are residing on the same address

mentioned in the notice. Even if, it is assumed that

petitioner No.1 was on training till 15.02.2020, he must

have received the notice thereafter on completion of his

training. Further, there is no dispute that the notices were

not received by petitioners No.2 and 3. Under the

circumstances, the presumption of due service is not

rebutted by mere denial of the petitioners.

13. The trial Court has rejected the application of

wife for grant of maintenance only for the reason that she

is working as Patwari and therefore, presumed that she

must be getting sufficient salary and HRA to sustain herself.

The object behind the grant of maintenance is to ensure

that the defendant spouse or child is not reduced to

destitution. Even if the wife is employed, the Court has to

see whether the income is sufficient to maintain herself and

her child, to the same standard of living as she was

accustomed to in her matrimonial home. Just because wife

is working, it cannot operate as bar from being awarded

maintenance by the husband.

14. In (2021) 2 SCC 324 Rajesh Vs. Neha and

another the Supreme Court has observed thus:-

(c) Where wife is earning some income

90. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments:-

90.1. In Shailja & Anr. v Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the

matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.

90.2. In Sunita Kachwaha & Ors. v Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

90.3. The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash Bodhraj v Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

90.5. This Court in Shamima Farooqui v Shahid Khan cited the judgment in Chander Parkash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.

14. In the instant case, the financial status/income

of the husband in much more than the wife who also has

the responsibility to look after and maintain her dependent

minor son. Record shows that the wife is only getting

Rs.274/- towards HRA, whereas the petitioner No.1/husband

has no other liability as his mother/petitioner No.2 is

pensioner and not dependent on him and petitioner No.3

being married is dependent on her husband. Under the

circumstances, the grant of maintenance of Rs.3,000/- and

Rs.2,000/- respectively to wife and the minor child and

Rs.2,000/- for HRA is not excessive.

15. In view of the aforestated, there is no merit in

the claim of petitioners. Petition is accordingly dismissed.

                                           (Nandita Dubey)
                                                Judge
SMT. GEETHA NAIR                              09/12/2021
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2021.12.09 17:10:40 +05'30'