Afsar Khan vs Smt. Tamanna Bano
2021 Latest Caselaw 520 MP

   1     THE HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.12901/2021
         Afsar Khan Vs. Smt. Tamanna Bano and another

Gwalior, Dated :8/03/2021

       Shri Suresh Agrawal, Advocate for applicant.

       This application under Section 482 of Cr.P.C. has been filed

against the order dated 8/5/2020 passed by Additional Sessions

Judge, Pichhore, District Shivpuri in Criminal Revision No.7/2018,

thereby enhancing the amount of maintenance awarded by the trial

court in favour of the respondent no.1 and the order of

maintenance passed in favour of respondent no.2 was upheld.

It is the case of the applicant that the respondent no.1 is the

wife of the applicant, whereas the respondent no.2 is his daughter.

The respondents filed an application under Section 125 of Cr.P.C.,

which was allowed and an amount of Rs.1,000/- per month was

granted by way of maintenance to respondent no.1, whereas an

amount of Rs.2,000/- per month was awarded to respondent no.2.

Being aggrieved by the said order of maintenance, the respondents

preferred a revision, which was partially allowed by the Revisional

Court and the amount of Rs.2,000/- granted to the respondent no.2

by the trial court was affirmed, whereas the amount of Rs.1,000/-

granted to respondent no.1 was enhanced to Rs.2,000/- per month.

It is submitted by the counsel for the applicant that since the

applicant is a poor person and, therefore, he cannot pay Rs.2,000/-

2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.12901/2021 Afsar Khan Vs. Smt. Tamanna Bano and another

per month to his wife. So far as the maintenance awarded by the

trial court in favour of respondent no.2 is concerned, it is submitted

by the counsel for the applicant that he has no objection and even

otherwise, he had not challenged the said order before the

Revisional Court.

Heard learned counsel for the applicant.

So far as the contention of the counsel for the applicant that

the applicant is a poor person and is not in a position to earn

Rs.2,000/- for payment of maintenance to respondent no.1 is

concerned, the same is misconceived and cannot be accepted.

The Supreme Court in the case of Shamima Farooqui v.

Shahid Khan, (2015) 5 SCC 705 has held as under:-

''15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun (1997) 7 SCC 7 has held as follows: (SCC p. 12, para 8) "8. ... The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."

3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.12901/2021 Afsar Khan Vs. Smt. Tamanna Bano and another

16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC 316, it has been ruled that: (SCC p. 320, para 6) "6. ... Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 falls within the 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 ."

17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash 1968 SCC Online Del 52 wherein it has been opined thus: (SCC On Line Del para 7)

7. ... an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.12901/2021 Afsar Khan Vs. Smt. Tamanna Bano and another

his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.

From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort.

Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.''

It is not the case of the applicant that he is not an able bodied

person or he is handicapped. It is the primary duty of the husband

to maintain his wife. Now-a-days looking to the price index, it

cannot be said that the maintenance amount of Rs.2,000/- per

month awarded to respondent no.1 is on a higher side. Under these

circumstances, this Court is of the considered opinion that no

illegality has been committed by the Revisional Court by

enhancing the maintenance amount in favour of respondent no.1

from Rs.1,000/- to Rs.2,000/- per month.

So far as the maintenance amount awarded to respondent 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.12901/2021 Afsar Khan Vs. Smt. Tamanna Bano and another

no.2 is concerned, the order of the Trial Magistrate was not

challenged by the applicant. Even otherwise, the counsel for the

applicant has expressed his no objection to the maintenance

amount awarded to respondent no.2.

Accordingly, this application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun*

ARUN KUMAR MISHRA 2021.03.10 10:08:01 +05'30'