Smt. Puja Makhija vs Jitendra Makhija
2023 Latest Caselaw 1938 MP

                                                                     1
                                    IN     THE      HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                              BEFORE
                                                  HON'BLE SMT. JUSTICE ANJULI PALO
                                                       ON THE 3 rd OF FEBRUARY 2023
                                                   CRIMINAL REVISION No. 3829 of 2022

                                   BETWEEN:-
                                   SMT. PUJA MAKHIJA W/O SHRI JITENDRA MAKHIJA,
                                   AGED ABOUT 41 YEARS, OCCUPATION: KUCH NAHI
                                   VARTMAN      PATA  PUTRI    SWARGIYA   SHRI
                                   CHANCHALDAS ROHADA FLAT NO. 401 BLOCK A THE
                                   BLAYER    APARTMENTS   NEAR AASHARAM BAPU
                                   AASHRAM ABBAS NAGAR ROAD GANDHI NAGAR
                                   ROAD BHOPAL (MADHYA PRADESH)

                                                                                                 .....APPLICANT
                                   (IN PERSON )

                                   AND
                                   J ITEN D R A MAKHIJA S/O SWARGIYA GOPICHAND
                                   MAKHIJA, AGED ABOUT 39 YEARS, OCCUPATION:
                                   VYAPAR FLAT NO. 303 A.D.D. 2 TRITIYA TAL GUDVIL
                                   APARTMENT MAHARISHI VIDHYA MANDIR KE PAS
                                   NAPIER TOWN JABALPUR (MADHYA PRADESH)

                                                                                                .....RESPONDENT
                                   (NONE FOR THE RESPONDENT )
                                         Th is revision coming on for hearing this day, th e court passed the

                                   following:
                                                                      ORDER

In this revision under Section 397/401 of the Code of Criminal Procedure, the applicant - wife has cha1llenged the validity of the order dated 23.06.2022 passed in MJCR No.537 of 2016 whereby the application preferred by the applicant under Section 125 of the Cr.P.C. has been allowed in part and Signature Not Verified SAN

the non-applicant/husband has been directed to pay maintenance at the rate of Digitally signed by KOUSHALENDRA SHARAN SHUKLA Date: 2023.02.04 13:56:41 IST Rs.25,000/- per month to the applicant wife from the date of filing of the

application.

2. The facts of the case, in a nutshell, are that the applicant filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance at the rate of Rs.50,000/- per month. It is not disputed that the marriage between the applicant and non-applicant was solemised on 10.12.2013 as per Hindu rites and rituals. It is also not disputed that the applicant-wife is a B.D.S. doctor. The applicant had lodged an FIR on 27.06.2016 bearing Crime No.284 of 2016 against the respondent for offences under Sections 498 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. Thereafter offence under Section 325 of the IPC was also registered.

3. It was averred that at the time of marriage, the parents of the applicant had given dowry and other gifts as per their capacity. Earlier, the applicant was practising as Dentist but after marriage due to pressure of the respondent, she left her practice. The respondent used to harass and torture the applicant by beating her and alleging about her infertility. Due to harassment and torture by the respondent, she is living at her parental home and the respondent is not maintaining her.

4. The respondent by filing reply to the aforesaid application, denied the allegations levelled against him. It was stated that the applicant is a practising dentist and earning handsome amount. It was also contended that many a time, the parents of the applicant had obtained money from the respondent and did not repay the same. The applicant, herself left the house of the respondent without any rhyme or reason.

Signature Not Verified

5. By the impugned order, the Court below has partly allowed the SAN

application under Section 125 of the Cr.P.C. holding that the non-applicant shall Digitally signed by KOUSHALENDRA SHARAN SHUKLA Date: 2023.02.04 13:56:41 IST

pay the maintenance allowance at the rate of Rs.25,000/- per month to the

applicant from the date of filing of the application.

6. The applicant, in person, submitted that the Court below though found the facts narrated by the applicant to be correct yet only partly allowed the application under Section 125 of the Cr.P.C. and thus, erroneously granted maintenance at the rate of Rs.25,000/- per month only instead of Rs.50,000/-. She left the matrimonial home due to harassment by the respondent which is reflected from the FIR lodged by the applicant against the respondent. The respondent has property worth about Rupees Five Crores and he is earning Rs.5 Lac per month which is reflected from paragraph 8 of his cross- examination. It is also contended that no document has ever been produced by the respondent indicating her income by practising as a dentist. It is submitted that earlier the applicant was dependent on her father but her father died on 11.04.2021 and thus, she has no other source for her maintenance. Under these circumstances, it is prayed that maintenance amount may be enhanced.

7. Despite ample opportunity, none has appeared for the respondent.

8. I have heard the applicant in person and perused the record. It is not in dispute that the applicant is legally wedded wife of the non-applicant. The dispute between the parties regarding maintenance has been adjudicated by the trial Court and the findings of the Court below have not been challenged. The applicant appeared in person and only claimed that the maintenance amount

awarded by the trial Court may be enhanced as the non-applicant has so many sources of income and his earning is so high but the trial Court has fixed the monthly income of the non-applicant only at the Rs.70,000/-. Signature Not Verified SAN

9. The statements of the applicant about the earnings of the non-applicant

Digitally signed by KOUSHALENDRA SHARAN SHUKLA are not corroborated by her own witnesses. Although some documents have Date: 2023.02.04 13:56:41 IST

been filed by the applicant to establish that the non-applicant was posted as Editor of News Vision. His identity card (Exhibit P-14), his bio-data prepared for marriage purpose is Exhibit P-21 and documents regarding his income and properties are Exhibits P-15 to P-20 and Exhibits P-22 to P-24. She has claimed that the non-applicant has property worth Rupees 5 Crores and he is earning about Rs.5 Lac per month. On the other hand, she admitted that she is a BDS doctor but she denied that she is working as dentist at Bhopal.

10. In the case of Rajnesh v. Neha and Another, (2021) 2 SCC 324 Hon'ble the Supreme Court has dealt with the criteria for determination of quantum of maintenance in detail. It has been held that objective of granting interim/ permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance. The factors which would weigh with the Court inter alia the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non- working wife. [See also: Jasbir Kaur Sehgal v. District Jude, Dehradu, Signature Not Verified SAN

(1997) 7 SCC 7 and Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 Digitally signed by KOUSHALENDRA SHARAN SHUKLA

SCC 112] Date: 2023.02.04 13:56:41 IST

11. In the recent case of Anju Garg and Another v. Deepak Kumar Garg, 2022 SCC OnLine SC 1314 it has been held by Hon'ble the Supreme Court as follows:

" 1 0 . 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, and 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 t o 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."

12. In the case of Kusum Bhatia v. Sagar Sethi, (Special Leave to Appeal No.16051 of 2017 decided on 16.09.2019) the Hon'ble Supreme Court held as under:

"...since the petitioner is a working lady with sufficient salary, we decline to award any maintenance in her favour."

13. In the case of K.N. v. R.G.,2019 SCC OnLine Del 7704 the

Signature Not Verified SAN Division Bench of High Court of Delhi in paragraph 8 of the decision has held

Digitally signed by KOUSHALENDRA thus:

SHARAN SHUKLA Date: 2023.02.04 13:56:41 IST

"8. Before adjudicating on the facts of this case, we would traverse through the legal position, as culled out by various judicial pronouncement relating to maintenance pendente lite. No doubt it is true that as per law every able- bodied husband has a duty to maintain his wife, who is unable to maintain herself. The law as has developed, does not permit any one to take a stand that the grant of maintenance should be only to fulfill the basic needs of food or clothing etc. but mandates that the maintenance should be such that the other party should be able to live with a status and and standard as is being enjoyed by the party granting maintenance. The purpose of providing maintenance is to secure such facility and a life style which the wife enjoyed while living in the consortium. At the same time, there is a whole plethora of judgments which lay down that if a spouse is qualified and has a capacity to earn then the law does not expect that such a spouse would sit idle and burden the other spouse with maintenance."

14. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the

status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it. [See: Manish Jain v. Akanksha Jain, (2017) 15 SCC 801] The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e.

Signature Not Verified maintenance awarded to the wife should neither be so extravagant which SAN

Digitally signed by KOUSHALENDRA becomes oppressive and unbearable for the respondent, nor should it be so SHARAN SHUKLA Date: 2023.02.04 13:56:41 IST

meagre that it drives the wife to penury.

15. In the case of Shailja v. Khobbanna, (2018) 12 SCC 199 it has been held by Hon'ble the Supreme Court 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.

16. In the light of the aforesaid well settled enunciations of law by Hon'ble the Supreme Court, the facts of the present case may be analysed. There is no substantial material on record to show that the income of the non-applicant is Rs.5 Lacs monthly because the testimony of the applicant has not been corroborated by any other evidence. The trial Court has awarded maintenance at the rate of Rs.25,000/- per month in favour of the applicant. On the other hand, the applicant is claiming maintenance at the rate of Rs.50,000/- per month. But the fact remains that the respondent has chosen not to appear before this Court to oppose the averments of the applicant and also not filed any affidavit in rebuttal of the documents filed by the applicant. He has also not filed any affidavit regarding his own income in view of decision in the case of Rajnesh (supra). Hence, it is deemed fit to enhance the maintenance amount by a further sum of Rs.10,000/- (Rupees Ten Thousand only) per month and accordingly, it is directed that the non-applicant shall pay the maintenance to the applicant at the rate of Rs.35,000/- (Rupees Thirty Five Thousand only) per month from the date of the order passed by the trial Court.

Signature Not Verified SAN

17. Accordingly, the revision is allowed in part. Digitally signed by KOUSHALENDRA SHARAN SHUKLA Date: 2023.02.04 13:56:41 IST

(SMT. ANJULI PALO) JUDGE ks

Signature Not Verified SAN

Digitally signed by KOUSHALENDRA SHARAN SHUKLA Date: 2023.02.04 13:56:41 IST