Madhya Pradesh High Court
Mehndi Hasan vs Smt. Sahana Bano on 10 August, 2023
Author: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 10 th OF AUGUST, 2023
CRIMINAL REVISION No. 1072 of 2023
BETWEEN:-
MEHNDI HASAN S/O CHOTE @ ZAKARIYA, AGED
ABOUT 37 YEARS, OCCUPATION: LABOUR R/O VILLAGE
AND POST RAGHUNATHGANJ POLICE STATION LAUR
DISTRICT REWA (MADHYA PRADESH)
.....APPLICANT
(BY SHRI SHAFIQULLAH - ADVOCATE)
AND
SMT. SAHANA BANO W/O MEHNDI HASAN, AGED
ABOUT 19 YEARS, OCCUPATION: TAILORING R/O
INDRA COLONY WARD NO. 41 POLICE STATION
STATION WAIDAN TEHSIL AND DISTRICT SINGRAULI
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI M. P. SHUKLA - ADVOCATE)
Reserved on : 03.08.2023
Pronounced on : 10.08.2023
.......................................................................................................................
.
This revision coming on for admission this day, th e court passed the
following:
ORDER
This criminal revision has been preferred to challenge the order passed
b y Principal Judge, Family Court, District Singrauli in MJCR No.58/2021. By
this order dated 11.11.2021, an application filed under Section 125 of Cr.P.C.
Signature Not Verified
Signed by: POONAM
MANEKAR
Signing time: 8/11/2023
5:32:50 PM
by the respondent-wife was allowed partly and applicant-husband was directed
to pay her Rs.7,000/- per month as maintenance from 04.03.2021.
2. Brief facts relevant for decision of this revision petition are that parties
were married on 07.06.2020; respondent-wife filed a report before the Waidhan
police station and also submitted a complaint before the S.P. Singrauli regarding
demand of dowry and harassment; it was claimed therein that she was thrown
out of her matrimonial house on those counts, and since then, applicant-
husband was neglecting his liability to maintain her. It was claimed in the
maintenance application that applicant-husband has 2.5 acre irrigated land, he
runs a poultry farm, he is in the business of making bidi and he also runs a meat
shop. It was claimed that his earning was Rs.4,80,000/- per month and it was
prayed that Rs.50,000/- be granted as maintenance to the respondent-wife. The
applicant-husband did not appear before the family Court. Hence, proceedings
were taken up ex-parte against him. Respondent-wife examined four witnesses
in support of her prayer and in the light of this unrebutted evidence, the
impugned order was passed.
3 . Applicant-husband did not take up any proceeding to get ex-parte
order set-aside and he directly filed this revision petition to challenge the
impugned order. The grounds raised herein are that there was a decree of
restitution of conjugal rights in favour of applicant-husband passed by District
Judge, Rewa in RCS No.366/2020 decided on 04.01.2023. It was proved in that
case that respondent-wife was living separately from the applicant-husband
without having any reasonable and sufficient cause. No notices were issued to
the applicant-husband before passing the impugned order. Learned trial Court
committed illegality in assessing the income of applicant-husband as Rs. 40,000
- Rs.50,000 per month, without there being any proof in this regard. No
Signature Not Verified
Signed by: POONAM
MANEKAR
Signing time: 8/11/2023
5:32:50 PM
authenticate documents or evidence were available on record to reach to this
finding. It was also ignored that respondent-wife was an earning woman and
was competent to maintain herself. No affidavit was filed by her to disclose her
assets, income and liabilities, despite the fact that submission of such affidavit
was mandatory. It is, therefore, prayed that the instant revision be allowed and
the trial Court be directed to give an opportunity of hearing to the applicant-
husband in the interest of justice.
4. This revision petition has been contested by the respondent-wife on
the ground that the applicant-husband willingly chose not to contest the case of
maintenance, hence, he did not appear before the trial Court and on the basis of
merit and the evidence placed before the trial Court, a well reasoned order has
been passed which deserves no interference.
5. Heard counsel for the parties and perused the record.
6. In the light of prayer made in this revision petition, this Court has to
examine first whether the applicant-husband was duly served in the maintenance
case to contest the maintenance application. The order-sheet of Principal Judge,
Family Court in MJCR No.58/2021 dated 25.10.2021 shows that two notices,
sent to applicant-husband through registered post, were considered on that
date. One notice was for the earlier date of hearing which was received
unserved with a remark that applicant-husband was not found at home and it
was informed that he does not live there. The second notice was sent for the
date on which this order was passed. This notice was also received back, but
with remark that the consignee refused to take the notice. The learned trial Court
observed that notice was sent on correct address and as its service was
refused, hence, it should be inferred that notice was duly served. The
Signature Not Verified
Signed by: POONAM
MANEKAR
Signing time: 8/11/2023
5:32:50 PM
observation of learned trial Court is in accordance with the legal provision,
hence, it cannot be found fault with. The learned trial Court then had the case
called and as no one appeared on behalf of applicant-husband, proceedings
were taken up ex-parte against him. This Court finds no reason to interfere in
that order or to observe that there was any illegality in proceeding ex-parte
against the applicant-husband. On the basis of this analysis, present case cannot
be sent back to the Court below for re-trial. The prayer made in that regard is,
therefore, rejected.
7 . The other part of impugned order is challenged on the ground that
respondent-wife was a working woman and was capable to maintain herself,
hence, no maintenance should have been granted in her favour. For this, the
applicant-husband has taken the plea that no affidavit in the light of judgment of
Rajnesh Vs. Neha & anr. (2021) 2 SCC 324 was filed by the respondent-wife
before the trial Court. The record of the trial Court shows that there was already
an affidavit filed by the respondent-wife regarding her assets and liabilities and
further there were statements on oath regarding her financial dependency on her
parents. Thus, the grounds raised regarding financial independence of
respondent-wife cannot be accepted. Further, there is no evidence to come to
the conclusion that respondent-wife is employed and earning sufficient income
to maintain herself.
8. The third ground that needs consideration in this case is that whether
the respondent-wife had sufficient reasons to live separately from the applicant-
husband. Applicant-husband has relied upon judgement and decree passed in
RCS No.366/2020, in which it is held that respondent-wife has deserted the
applicant-husband without any reasonable cause, hence, she was directed to
resume the conjugal relationship. It may be observed that the order under
Signature Not Verified
Signed by: POONAM
MANEKAR
Signing time: 8/11/2023
5:32:50 PM
challenge was passed on 11.11.2021 allowing maintenance to the respondent-
wife and the decree for restitution for conjugal rights was passed on
04.01.2023. Therefore, the decree passed in favour of applicant-husband could
not have been taken into consideration by the learned Judge of Family Court
while passing the maintenance order. The applicant-husband never opted to
appear before the learned Judge of Family Court to reveal the fact that there is a
case pending between the parties regarding restitution of conjugal rights. It may
also be observed that the decree passed in the case is ex-parte. Hence, the
impugned order cannot be assailed on the basis of findings given in a
subsequent judgement and decree.
9. The last point raised before this revisional Court is that there was no
reliable evidence regarding income of applicant-husband. The statements of
respondent-wife given before the trial Court claim that applicant-husband runs a
poultry farm, he owns a truck and he has 2.5 acre irrigated land. It may be
observed that there is no averment made in the maintenance application
regarding transport business of applicant-husband. Further, the respondent-wife
did not state any fact in her testimony regarding the meat shop owned by the
applicant-husband and his bidi business as alleged in the maintenance
application. Statements about these business have been given by the parents of
respondent-wife and also by independent witness Firoz Khan (PW-4). The
alleged numerous businesses of applicant-husband could have been proved by
the documents of ownership whether they related to running a poultry farm,
ownership of transport vehicle or ownership of agriculture land or commercial
land/shop. Similarly, business of bidi could have also been proved by license
or registration of business, but no efforts were made by respondent-wife to
Signature Not Verified
Signed by: POONAM
MANEKAR
Signing time: 8/11/2023
5:32:50 PM
bring these documents of ownership or business.
10. Merely on the basis of oral testimony of respondent-wife and her
witness, which were full of omissions and improvements, the Court below
reached to the conclusion that monthly income of applicant-husband is proved
to be Rs.40,000/- to 50,000/- per month. No reasonable ground for this
assessment has been mentioned in the impugned order. It was a duty of
respondent-wife to prove the alleged business and the income of applicant-
husband, even if he was not contesting the case. Since, she has failed to give
any cogent evidence on this point, the impugned order deserves to be interfered
on finding of monthly income of applicant-husband. In the absence of any
reliable evidence regarding income, this Court presumes that applicant-husband,
being an able body man and having no incapability, is competent to earn atleast
Rs.7,000/- per month as unskilled labour.
11. On the basis of assessment of income of applicant-husband, it is
directed that he shall pay Rs.2,500/- per month as maintenance to respondent-
wife. This order shall be effective from the date of application filed under
Section 125 of Cr.P.C. i.e. 04.03.2021.
12. This revision petition is accordingly partly allowed and disposed of.
(ANURADHA SHUKLA)
JUDGE
pnm
Signature Not Verified
Signed by: POONAM
MANEKAR
Signing time: 8/11/2023
5:32:50 PM
