Madhya Pradesh High Court

Babli Saket vs Seetasharan Saket on 11 April, 2023

Author: Dinesh Kumar Paliwal

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL

CRIMINAL REVISION No.1393/2021

Between:-

1. BABLI SAKET, W/O
SEETASHARAN SAKET,
AGED ABOUT 35 YEARS,
OCCUPATION HOUSEWIFE.

2. KARAN SAKET, S/O
SEETASHARAN SAKET, AGED
ABOUT 12 YEARS, THROUGH
HIS NATURAL GUARDIAN
MOTHER NO.01.

3. RAJARAM SAKET, S/O
SEETASHARAN SAKET, AGED
ABOUT 8 YEARS, THROUGH
HIS NATURAL GUARDIAN
MOTHER No.01.

4. VIKAS SAKET, S/O
SEETASHARAN SAKET, AGED
ABOUT 6 YEARS,
THROUGH HIS NATURAL
GUARDIAN MOTHER NO.01.

5. KUMARI ANEETA DEVI, D/O-
SEETASHARAN SAKET, AGED
ABOUT 3 YEARS, THROUGH
HIS NATURAL GUARDIAN
2

MOTHER NO.1.

6. KUMARI ANEETA DEVI, D/O-
SEETASHARN SAKET, AGED
ABOUT 8 MONTHS, THROUGH
HIS NATURAL GUARDIAN
MOTHER NO.1.

ALL RESIDENTS OF VILLAGE
PIPRAHIYA, P/S BAHRI,
DISTT. SIDHI, AT PRESENT
R/O- VILLAGE PAIGMA, P.S.
BAHRI, DISTT. SIDHI
(M.P.)

......APPLICANTS
(BY SHRI AKAMLESH KUMAR DWIVEDI, ADVOCATE)

AND

SEETASHARAN SAKET, S/O-
VISHALE SAKET, AGED ABOUT
36 YEARS, OCCUPATION
AGRICULTURIST&
CONTRACTOR, R/O- VILLAGE
PIPRAHIYA, P.S BAHRI, DISTT-
SIDHI (M.P.)

...RESPONDENT
(NONE FOR THE RESPONDENT DESPITE SERVICE OF
NOTICE)
....................................................................................................
Reserved on:15.03.2023
Pronounced on:11.04.2023
....................................................................................................
3

This criminal revision having been heard and reserved for order,
coming on for pronouncement this day, the Court pronounced the following:

ORDER

This criminal revision under Section 397 and 401 of the Cr.P.C. read with Section 19(4) of Family Court Act has been preferred challenging the legality and correctness of the order dated 18.03.2021 passed by Principle Judge, Family Court, Sidhi in M.J.C.R. No.80/2019 Babli Saket and others Vs. Seetasharan Saket whereby an application under Section 125 of Cr.P.C. for grant of maintenance against husband and father Seetasharan Saket who failed to maintain them has been rejected.

2. It is admitted position that revisionist/applicant No.1 was married with non-applicant 15 to 16 years ago. They stayed together for a considerable period of time and five children were born from their wedlock.

3. Learned counsel for the revisionist submitted that revisionist No.1 is wife of the non-applicant and their marriage had taken place fifteen sixteen years ago. After marriage, they stayed together. After birth of youngest daughter, applicant No.6 who is only 8 months old, non-applicant harassed and beat her and turned out of the house, due to which, she is living in her parental house at village Paigma. Revisionist/applicant No.1 has no source of income. Applicants No.2 to 6 are minors and are pursuing their studies. Pursuant to the averments and evidence of the parties, it was submitted that there is sufficient evidence to show that applicant No.1 has sufficient cause and reasons to live separately as she has been driven out by the husband from matrimonial home after giving birth to the youngest girl child. Learned Principle Judge Family Court has not considered the evidence of the

applicant and her witnesses in proper perspective and their application has been dismissed on the ground that non-applicant is residing with applicants and revisionist herself is residing separately without any just cause above findings shows non-application of mind. It was further submitted that revisionist No.1 and minor applicant Nos.2 to 6 have no source of income to maintain themselves. The findings written by the learned Court below are not based on evidence on record and thus impugned order is liable to be set aside. In support of his submissions learned counsel for revisionist has placed reliance on judgment of Shamima Farukhi Vs. Shahid Khan (2015) 5 SCC 705.

4. I have considered the submissions made by learned counsel for the applicant and has perused the material on record.

5. It is undisputed that applicant No.1 wife had earlier filed an application under Section 12 of the Domestic Violence Act which was dismissed. Thereafter, wife and children filed an application under Section 125 of Cr.P.C. seeking maintenance for herself and to the minors born out of the wedlock but their application was rejected.

6. Applicant Babli (AW-1) in her evidence has deposed that she was married to non-applicant 15 years ago and they have five children out of that wedlock, who are applicant Nos. 2 to 6. She further deposed that after the birth of youngest daughter, who is 8 months old her husband started to harass her stating that she is delivering girl child only and turned her out from the matrimonial home. As she was forced to leave matrimonial home she took the shelter in her parental home and since then she is residing in her parental home at village Paigma. She is unable to maintain herself and minor

children as she has no means to maintain herself and children. The aforesaid evidence of Babli (AW-1) finds corroboration from the evidence of Rampyare (AW-2) and Dharmraj (AW-3). Non-applicant Seetasharan Saket (N.A.W.1) in para-7 of his evidence has admitted that on account of harassment and cruelty by her applicant is living in her parental house for last four-five years and he is not providing any maintenance to them. Thus, from the admission of the non-applicant, it is apparent that applicant No.1 was forced to leave her matrimonial home by him and for the last four five years she is residing at her parental home.

7. Pyare Saket (N.A.W.2) in Para-8 of his cross-examination has admitted that non-applicant Seetasharan Saket is residing in his village Chandwahi. As non-applicant/witness Pyare Saket (N.A.W.2) has admitted that non-applicant No.1 is residing at village Chandwahi and not in village Paigma, the finding recorded by learned Principle Judge Family Court that non-applicant husband is residing with applicant and applicant Nos.2 to 6 is against the material and evidence available on record. Non-applicant Seetasharan himself has admitted that due to harassment by him applicant is living at her parental home. Thus, learned trial Court was not justified to hold that applicant No.1 is living separately without any just cause. The findings recorded by learned Court below that the applicant is residing with applicant and children at village Paigma is also against the evidence of Pyare Saket (NAW-2) who in his cross-examination has candidly admitted that Seetasharan Saket is living in his village Chandwahi. Thus, it is apparent that learned Presiding Judge has disbelieved the evidence of Babli Saket (A.W.1) without any just and plausible reason. A perusal of the

evidence of the witnesses shows that evidence of applicant Babli Saket (AW-1) not only find support from the evidence of Rampayare (AW-2) and Dharmraj (AW-3) but also find support to some extent from the admissions made by non-applicant Seetasharan Saket (N.A.W.1) and Pyare (N.A.W.2) also.

8. As far as the income of husband is concerned, Babli (AW-1) has deposed that her husband is able-bodied man and earning Rs. 40,000/-- 50,000/- per months by working as centring contractor. Her evidence finds corroboration from the evidence of Rampyare (AW-2) and Dharmraj (AW-

3). While non-applicant Seetasharan Saket has deposed that he is a labourer and earns only Rs. 200/- per day as wages but in his cross-examination, he has admitted that he had gone to Satna to work as a truck driver. From the admission of the non-applicant, it emerges that he is not an ordinary labourer, he is a truck driver and his income is more than Rs. 10,000/- per month but he has deliberately denied from the factum of his income being more than Rs.10,000/-(Rs.Ten Thousand) per month. Thus, the findings recorded by learned Court below are not only perverse but are also totally against the material available on record.

9. It may be observed that proceedings under Section 125 of Cr.P.C. are summary in nature for compelling a man to maintain his wife, children and parents who are unable to maintain themselves. It provides a cheap and speedy remedy for securing to a limited decree of maintenance for the deserted wife and children. The evidence in matters under Section 125 of Cr.P.C. is not required to be appreciated in a manner like in criminal trial for offences under Indian Panel Code or other substantial criminal offences,

Hon'ble Apex Court in the case of Chaturbhuj Vs. Sita Bai(2008) 2 SCC 316 held as under:

" Section 125 Cr.P.C. 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 Vs. Veena Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508] falls within 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 Vs. State of Gujarat [(2005)] 3 SCC 636: 2005 SCC (Cri) 787]"

10. In the case on hand, it appears that the Family Court had conducted the proceedings without being aware upto the objects and reasons and spirit of the provisions under Section 125 of the Cr.P.C. and disregarded the basic canon of law that it is a sacrosanct duty of husband and father to provide financial support to the wife and children, who are unable to maintain themselves. Recently, Hon'ble Apex Court in the case of Anju Garg and another Vs. Deepak Kumar Garg 2022 SC 805 held as under:

" This Court had made the above observations as the Court felt that the Family Court in the said case had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under Section 125 of the Code. Such an impression has also been gathered by this Court in the case on hand. The family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn

money even by physical labour, if he is an able-bodied, an could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj Vs. Sita Bai, it has been held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. As settled by this Court, Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India.

" The family Court, in the instant case had not only over- looked and disregarded the aforesaid settled legal position, but had proceeded with the proceedings in absolutely pervert manner. The very fact that the right of the respondent to cross-examine the witnesses of the appellant-original applicant was closed, as he had failed to appear before the Family Court despite the issuance of warrants, clearly established that he had no regards for his own family nor had any regards for the Court or for the law. The allegations made by the appellant-wife in her evidence before the Court had remained unchallenged and, therefore, there was no reason for the Family Court to disbelieve her version, and to believe the oral submissions made by the learned counsel appearing for the respondent which had no basis. In absence of any evidence on record adduced by the respondent disputing the evidence adduced by the appellant, the Family Court could not have passed the order believing the oral submissions of the learned counsel for the respondent. She had clearly stated as to how she was harassed and subjected to cruelty by the respondent, which had constrained her to leave the matrimonial home along with her children, and as to how the respondent had failed and neglected to maintain her and her children. She had also proved by producing the documentary evidence that her father had paid money to the respondent from time to time to help the respondent for his business. Even if the allegations of demand of dowry by the

respondent were not believed, there was enough evidence to believe that money was being paid to the respondent by the father of the appellant-wife, which substantiated her allegation that the respondent was demanding money from her father and was subjecting her to harassment. The errant respondent had also gone to the extent of questioning her chastity alleging that Rachit was not his biological son. There was nothing on record to substantiate his such baseless allegations. His application for DNA test was also rejected by the Family Court. Of course, the Family Court granted the Maintenance petition so far as the appellant No.2-son was concerned, nonetheless had thoroughly mis- directed itself by not granting the maintenance to the appellant-wife"

" Such an erroneous and perverse order of Family Court was unfortunately confirmed by the High Court by passing a very perfunctory impugned order. The High Court, without assigning any reasons, passed the impugned order in a very casual manner. This Court would have remanded the matter back to the High Court for considering it afresh, However, considering the fact that the matter has been pending before this Court since the last four years, and remanding it back would further delay the proceedings, this Court deemed it proper to pass this order."

12. On a meticulous scrutiny of the evidence of the applicant and her witnesses and admission made by the non-applicant Seetasharan Saket (AW-

1) in his evidence, it is apparent that non-applicant is not an ordinary labourer, he is not only a truck driver but he also works as a centering contractor. Thus, his income cannot be assesed less than Rs.10,000/- per month. The object of maintenance proceedings is not to punish a person for a past neglect but to prevent vagrancy and destitution of a deserted wife and children by providing them food, clothes and shelter by a speedy remedy. In case on hand, learned Family Court Judge has committed error by

disbelieving the evidence of the revisionist and her witnesses that she was harassed by the non-applicant on account of the birth of the second girl child. She was not only ill-treated but was also turned out from matrimonial home and was compelled to reside at her parental home.

13. Thus, considering the facts and evidence of the parties on record and the aforesaid legal position, it is apparent that learned Judge of family Court by rejecting the application of the applicants on the ground that applicant No.1 is staying away from her husband without any sufficient reason and non-applicant /husband/ father is residing with the applicants at village Paigma has passed erroneous and perverse order by not assigning just and proper reasons. Therefore, for the aforesaid reasons, the impugned judgment and order is set aside and revision is allowed.

14. This Court would have remanded back the matter to the family Court, Sidhi for considering it afresh, however, considering the fact that the matter is pending since July, 2019 and remanding it back would further delay the proceeding, this Court deemed it proper to pass this order.

15. Though non-applicant has stated that he earns only Rs.200/- per day as labourer and has no other source of income but this Court is not ready to accept such statement and has already held herein above that his income as truck driver and centering Contractor is not less than Rs.10,000/- (Ten thousand) per month. He is an able bodied man and is obliged to earn by legitimate means and maintain his wife and minor children. Thus, having regard to the evidence of the parties before the family Court and evidence on record, the Court has no hesitation in holding that though the respondent had sufficient source of income and was able bodied man had failed and

neglected to maintain the applicants. Considering totality of facts and circumstances, non applicant/ husband/ father is directed to give maintenance allowance of Rs. 1000/- - Rs.1000/- (One-one thousand) per month to the applicant No.1 wife and applicants No.2 to 6 sons and daughters till they attain majority.

16. It is accordingly directed that the respondent/ non applicant shall pay above maintenance amount per month to the applicant wife and children from the date of filing maintenance application before the family Court. The entire amount of arrears shall be deposited by the respondent in the family Court within ten weeks from today.

17. The revision stands allowed accordingly.

(DINESH KUMAR PALIWAL) JUDGE

Digitally kundan signed by KUNDAN SHARMA Date: 2023.04.12 19:42:54 +05'30'