Madhya Pradesh High Court
Smt. Smita Shrivastava W/O Sanjay Lal vs Sanjay Lal on 23 February, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 23 rd OF FEBRUARY, 2024
CRIMINAL REVISION No. 2311 of 2023
BETWEEN:-
SANJAY LAL S/O LATE SHRI T.C. LAL, AGED ABOUT 50
YEARS, OCCUPATION: ADVOCATE R/O FLAT NO. 602 A
BLOCK KATARIYA THEME PARK TILHERI POLICE
STATION GORABAZAR JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANISH DATT - SENIOR COUNSEL ASSISTED BY SHRI KUNAL
DUBEY - ADVOCATE)
AND
1. SMITA SHRIVASTAVA D/O NARSINGH NARAYAN
S H R I VAS TAVA R/O BESIDES CHITRAGUPT
MANDIR TARHARI POLICE STATION
GORABAZAR JABALPUR (MADHYA PRADESH)
2. SOUMYA LAL THROUGH GUARDIAN MOTHER
SMITA SHRIVASTAVA D/O SHRI SANJAY LAL,
AGED ABOUT 9 YEARS, OCCUPATION: NIL R/O
BESIDES CHITRAGUPT MANDIR TARHATI PS
CITY KOTWALI (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI RAVINANDAN DWIVEDI - ADVOCATE)
CRIMINAL REVISION No. 2322 of 2023
BETWEEN:-
1. SMT. SMITA SHRIVASTAVA W/O SANJAY LAL D/O
NARSINGH NARAYAN SHRIVASTAVA, AGED
ABOUT 44 YEARS, OCCUPATION: HOUSE WIFE R/O
BESIDE OF CHITRAGUPTA MANDIR, TARHATI
REWA POLICE STATION KOTWALI DISTRICT
REWA(M.P.) (MADHYA PRADESH)
2. SAUMYA LAL SHRIVASTAVA D/O SANJAY LAL,
Signature Not Verified
Signed by: PRADYUMNA
BARVE
Signing time: 2/28/2024
12:01:31 PM
2
AGED ABOUT 9 YEARS, OCCUPATION: MINOR
THROUGH HER NATURAL GUARDIAN MOTHER
SMITA SHRIVASTAVA R/O BESIDE OF
CHITRAGUPTA MANDIR, TARHATI REWA POLICE
STATION KOTWALI DISTRICT REWA(M.P.)
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAVINANDAN DWIVEDI - ADVOCATE)
AND
SANJAY LAL S/O SHRI TARACHAND LAL, AGED ABOUT
50 YEARS, R/O KATARIYA THEME PARK FLAT NO.602
6TH FLOOR A-BLOCK TILHARI POLICE STATION
BARELA DISTRICT JABALPUR M.P. (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI MANISH DATT - SENIOR COUNSEL ASSISTED BY SHRI KUNAL
DUBEY - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
This order shall govern the disposal of both the aforesaid criminal
revisions.
2. These criminal revisions have been filed by the applicants being
aggrieved by the order dated 4.5.2023 passed by the Principal Judge, Family
Court, Rewa in MJCR No. 176 of 2017 whereby the husband has been
directed to pay an amount of Rs.15,000/- per month towards maintenance to
the wife and daughter each. In the other Revision filed by wife and daughter
enhancement of maintenance amount is being sought.
3. The facts of the case, in short, are that the marriage of the Shri Sanjay
Lal and Ms. Smita Shrivastava (hereafter referred to as the husband and wife
respectively) was solemnized on 24.5.2013 and out of this wedlock, they have
been blessed with a daughter on 26.2.2014. After giving birth to the child, the
wife came to her in-laws house on 26.8.2014 and stayed with the husband till
10.10.2014. Thereafter came back to Rewa. Alleging matrimonial dispute, the
wife filed an application under Section 125 of Cr.P.C. for maintenance before
Family Court, Rewa. The Family Court, Rewa vide impugned order has
directed the husband to pay an amount of Rs.15,000/- per month to the wife
and the daughter each (total Rs.30,000/- per month). Hence Criminal Revision
No. 2311 of 2023 has been filed by the husband seeking quashment of the order
dated 4.5.2023 whereas Criminal Revision No.2322 of 2023 has been filed by
the wife and daughter for enhancement of maintenance amount.
4. Learned Senior Counsel for the husband submits that in the present
case, the wife, on her own volition, deserted the husband and refused to cohabit
with him without any justifiable or sufficient reason. It is contended that in the
present case the husband moved an application under Section 9 of the Hindu
Marriage Act seeking restitution of conjugal rights. The said application was
allowed and the wife knowing fully well about the proceedings under Section 9
of the Hindu Marriage Act, did not make any effort to ensure her participation in
the said proceedings. Thus, the wife was not entitled for any maintenance.
Learned Senior Counsel while taking this Court to the testimony of the wife
submitted that the wife ventured upon to cast aspersions as regards the
character of the husband and even relationship of the husband with his sister
was doubted, therefore, it was a case of cruelty upon the husband at the behest
of the wife. This aspect of the matter ought to have been appreciated by the
Family Court while passing the impugned order. Unfortunately, there is no
consideration of this aspect of the matter in the entire impugned order. It is
further contended that the husband was ready to live with the wife but the wife,
on her own free will, refused to cohabit and live with the husband and levelled
baseless and frivolous allegations of cruelty. It is also contended by learned
Senior Counsel that the Court while considering the Income Tax Returns of the
husband of the year 2020-21, 2021-22 and 2022-23 has arrived at a conclusion
that the husband is in a position to pay a sum of Rs.15,000/- per month to each
of the wife and the daughter whereas the husband was earlier representing the
Income Tax Department as standing counsel but subsequently he has been
disengaged by the Department and at present he does not represent the Income
Tax Department, which is evident from the perusal of the affidavit, which has
been filed by the husband along with I.A. No. 22601 of 2023. Learned Senior
Counsel while placing reliance on the decision of this Court in Smt. Renu Vs.
Heeralal @ Harish - 2002 CriLJ 2599 submits that if there is refusal to
cohabit with the husband despite there is decree of restitution of conjugal right,
wife is not entitled for maintenance. Learned Senior Counsel has also placed
reliance on the order dated 31.7.2018 passed in by this Court in Criminal
Revision No. 2574 of 2015 (Rajesh Vs. Smt. Dashodabai) and order dated
17.9.2012 passed in Criminal Revision No. 643 of 2011 (Suresh Bhardwaj
Vs. Smt. Vandana). Reliance has also been placed on the decision of Bombay
High Court in Manju Kamal Mehra Vs. Kamal Pushkar Mehra - 2009 (5)
MH.L.J. 859.
5. Learned Senior Counsel for the husband further submits that wife had
taken a stand before the Family Court that merely a decree of restitution of
conjugal rights does not debar the wife from claiming maintenance from the
husband and in support of the said submission reliance was placed by the wife
on the decision of the High Court of Delhi in Criminal Revision. P. No. 1001
of 2018 (Babita Vs. Munna Lal) dated 22.8.2022. However, the said case is
factually different, inasmuch as, in Para 24 of the said judgment, the Court had
dealt with the circumstances under which the wife was rendered helpless to
cohabit with the husband whereas no such eventuality exists in the present case.
Thus, it is submitted that the impugned order of grant of maintenance is liable to
be set aside on the following grounds:-
i. The wife without any sufficient reason has refused to cohabit with the
husband.
ii. The wife while casting aspersions regarding character of the husband
caused cruelty upon him.
iii. The Family Court has failed to appreciate the aspect that the husband
has been disengaged and is no more representing the Income Tax Department
as standing counsel, thus had no means to pay amount of maintenance.
iv. The wife is an educated lady having adequate source of income.
6. Per contra, learned counsel for the wife and daughter submits that the
revision filed by the husband is liable to be dismissed. It is contended that the
Family Court has not committed any error while passing the impugned order,
however, taking into consideration the inflation index, the amount of
maintenance needs to be enhanced. It is further contended that taking into
consideration the fact that future prospects of the daughter is a prime
consideration and for her proper higher education, there will be expenditure of
colossal amount, therefore, amount of maintenance be enhanced to Rs.50,000/-
each to the respondents. The counsel for the wife has placed reliance on the
decision of this Court in Babita Vs. Munna Lal (supra) to submit that merely
a decree of restitution of conjugal right does not deprive the wife from claiming
maintenance. The counsel for the respondent has also placed reliance on the
decision of the Apex Court in Bhuwan Mohan Singh Vs. Meena and others
- AIR 2014 SC 2875 and submitted that it is the bounden duty of the husband
to provide maintenance to the wife and children. In the present case, as the
husband is an able-bodied person, he is under obligation to ensure maintenance
to the wife and the daughter.
7. No other point is argued or pressed by the counsel for the parties.
8. Heard the submissions advanced on behalf of the parties and perused
the record.
9. In the present case, the Family Court, while considering the rival
submissions framed issue No. 1 to the effect that as to whether the wife had
deserted the husband on her own volition?
10. The Family Court while dealing with the said issue considered the
various aspects including the fact that the daughter of the sister of the husband
was residing in the same matrimonial house and continued to reside there
despite death of the parents of the husband. The Family Court while sifting the
entire evidence in Para 36 of the impugned order, considered the aspect that on
10.10.2014, the wife left the matrimonial house and thereafter she was residing
at Rewa. The husband last met with his daughter on 10.10.2014 and in his cross
examination, he expressed his inability to tell the class and school in which his
daughter was studying. Thus, the Family Court observed that the husband,
being the father, did not make any effort to take care of his daughter and the
approach of the husband was indifferent towards his daughter and the aforesaid
circumstances were prevailed upon the wife to leave the matrimonial house.
11. The analysis done by the Family Court in Para 36 of the impugned
order reflects that entire circumstances, from the birth of the daughter till
10.10.2014 when the wife left for Rewa, were considered by the Family Court
and it was concluded that there was failure on the part of the husband to
perform his duty as a father and to take care of his child. The finding so arrived
at by the Family Court in Paragraphs 36 and 37 since are based on overall
analysis of the evidence including testimonies of the husband particularly in
Paragraphs 33 and 34 thereof, in the considered view of this Court, the Family
Court has rightly arrived at the finding as regards issue No. 1.
12. The Family Court also considered the aspect of income of the
husband and in this regard the Income Tax Returns of the husband were also
taken note of by the Family Court in Paragraph 45 of the impugned order. The
fact that the husband was subsequently disengaged by the Income Tax
Department, was also considered by the Family Court in Paragraph 47 of the
impugned order and while considering the annual expenditure towards School
Fee of the daughter and other ancillary expenses, passed the order of
maintenance, which in the considered opinion of this Court, in absence of any
infirmity, does not require any interference. Undisputedly, the decree under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights was
passed ex-parte and the reason for not cohabiting with the husband was
indifferent approach of the husband towards his newly born child. Therefore,
this Court is of the considered view that no interference in the impugned order
is warranted.
13. The amount of maintenance has been quantified by the Family Court
while taking into consideration the facts and circumstances of the case and in
Paragraph 45 of the impugned order, cogent reasons have been assigned by the
Family Court. Thus, no case for enhancement is made out.
14. The judgements relied upon by learned Senior Counsel for the
husband are of no assistance in view of facts and circumstances of the present
case.
15. Resultantly, both these revisions, being devoid of merits, are hereby
dismissed.
(MANINDER S. BHATTI)
JUDGE
PB
