Hari Kishan Soni vs Shailshree
2022 Latest Caselaw 7839 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 985/2021

Hari Kishan Soni S/o Sh. Asha Ram Soni, Aged About 23 Years, Near Jain Girls Pg College, Bidasar Baari, Bikaner (Raj.).

----Petitioner Versus

1. Shailshree W/o Sh. Hari Kishan Soni, D/o Sh. Ram Swaroop Soni, Aged About 28 Years, Behind Bangali Mandir, Rani Bazar, Bikaner (Raj.).

2. Vishnu (Minnor) S/o Sh. Hari Kishan Soni, Aged About 2 Years, R/o Behind Bangali Mandir, Rani Bazar, Bikaner (Raj.).

----Respondents Connected With S.B. Criminal Revision Petition No. 113/2022

1. Shailshree W/o Sh. Harikishan Soni, D/o Ramswaroop Soni, Aged About 30 Years, B/c Soni, At Present Residing At Backside Of Bangali Mandir, Rani Bazar, Bikaner.

2. Vishnu Narayan S/o Harikishan Soni, Aged About 2 Years, Through His Natural Guardian Mother Smt. Shailshree At Present Residing At Backside Of Bangali Mandir, Rani Bazar, Bikaner.

----Petitioners Versus Harikishan Soni S/o Sh. Asharam, Aged About 32 Years, B/c Soni, At Present Residing At Backside Of Bangali Mandir, Rani Bazar, Bikaner.

----Respondent

For Petitioner(s) : Mr. N.L. Joshi a/w Ms. Kirti Pareek For Respondent(s) : Mr. Haider Agha a/w Mr. Salman Agha

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reserved On: 23/05/2022 Pronounced On: 25/05/2022

1. Both the Revision Petitions have been preferred against the

same impugned order, dated 26.10.2021, passed by Family Court

(2 of 8) [CRLR-985/2021]

No. 2, Bikaner in Criminal Misc. Application No. 131/2020,

whereby the application for maintenance under Section 12 Cr.P.C.

was accepted and the husband Hari Kishan was directed to pay a

sum of Rs. 30,000/- towards maintenance per month from the

date of application, with the following prayers:-

In S.B. Criminal Revision Petition No. 985/2021:

"It is, therefore, prayed that this Criminal Revision petition may kindly be allowed by quashing and setting aside the impugned order dated 26.10.2021 passed in Family Court No. 02 Bikaner"

In S.B. Criminal Revision Petition No. 113/2022:

"It is most humbly prayed before this Hon'ble Court that

a) The present revision shall be accepted and allowed.

b) Order dated 26.10.2021 passed by Family Court No.2 Bikaner in Civil Miscellaneous Case No. 131/2020 (709/2019) titled "Smt. Shailshree & Anr. Vs. Hari Kishan Soni" shall be modified and the maintenance amount granted to the revisionists shall be enhanced to Rs. 50,000/- per month.

c) Litigation expenses shall be granted to the revisionists.

d) Order of cost shall be passed in favor revisionists. And to pass any other order in favor of Revisionists which this Hon'ble Court deems fit in the ends of Justice and good conscience."

2. Both petitions arise out of a common controversy, and the

brief facts of the same as noticed by this Court are that the

Husband, Hari Kishan and the wife, Shailshree married on

21.07.2018 and on 07.05.2019, a son was born to them out of the

wedlock. Owing to discord among the parties, they separated and

a maintenance application came to be filed by the wife, on

11.10.2019 before Family Court No.2 Bikaner. The learned Court

(3 of 8) [CRLR-985/2021]

awarded interim maintenance, payable monthly from the date of

application, of Rs. 30,000 to the wife and son, vide order dated

03.04.2021. And that on 26.10.2021, the learned Court below

passed final order, whereby the amount of Rs. 30,000, payable

monthly to the wife and son by the husband, towards

maintenance, from the date of application. The husband is before

this Court seeking quashing of the impugned order, while the wife

is before this Court seeking modification of the impugned order,

seeking an enhancement of the maintenance amount awarded to

her, and her son, vide the impugned order.

3. After hearing learned counsel for both parties on previous

occasions, this Court, vide order dated 27.02.2022, at the behest

of the parties, directed them to appear before the Mediation Cell

of this Court at 11:00 a.m. on the same day. The Mediator's

Report, dated 05.05.2022, was placed before this Court on

09.05.2022, wherein it was stated that the husband and the wife

had amicably resolved the dispute, and this Court directed the

said parties to abide by the aforementioned Mediator's Report and

that the parties would live together along with their minor son for

a period of two months, after which this Court would further

consider whether any fresh orders would need to be issued.

4. However, both the husband and wife, petitioners in the cross

cases were present in person accompanied by their respective

counsel jointly submit that due to continuing acrimony between

the parties, that living together was no longer an option and

pleaded that compliance with the Mediation Report, as discussed

above, was not possible.

(4 of 8) [CRLR-985/2021]

5. Learned counsel for the revisionist-petitioner in S.B. Criminal

Revision Petition No 985/2021 (hereinafter referred to as 'the first

petition) submits that the averment of the wife, that the husband

was a goldsmith by profession and that his income is about Rs. 1

lakh per month is unsubstantiated. And that, he is in fact doing a

private job at a shop and earning only about Rs. 6,000/- And

that, the learned Court below has erred in determining the

maintenance amount to be Rs. 30,000/- since it is a well settled

legal position that the maintenance should be 25 percent of the

total income, and therefore should be reduced to Rs. 1,500/-

6. Learned counsel for the revisionist-petitioner in the first

petition further submits that his wife is in fact an educated

professional, and that while she is preparing for competitive

examinations while also giving coaching classes from which she

earns an income of around RS. 25,000 to 30,000/-.

6.1 Learned counsel further submits that he filed an application

under Section 9 of the Hindu Marriage Act, 1955 and also rented a

separate house for his wife and child, but that she did not come

with so ultimately the same was withdrawn.

6.2 Learned counsel also submits that he was unable to satisfy

the order of interim maintenance owing to his poor economic

condition, and that the learned Court below without taking

consideration the same, proceeded to pass the final order against

the husband ex-parte.

6.3 Learned counsel further submits that the wife is in non-

compliance with the guidelines laid down in the precedent law of

Rajnesh Vs. Neha and Ors. (2021) 2 SCC 324 and has not

made true and full disclosures regarding income and property.

(5 of 8) [CRLR-985/2021]

7. Learned counsel for the revisionist-petitioner, in the second

petition i.e. the wife, submits that the wife was mistreated by her

husband and her in-laws and demands for dowry were made from

her. And that the same was also mentioned in the Section 125

application so filed by her before the learned Family Court.

7.1 Learned counsel further submits that the husband owns a

jewelry shop in the name of Dawar Jewelers in Taliwada, Bikaner

and has an income of about Rs. 1 lakh per month. And that, due

to his non-compliance with the order of the interim maintenance,

passed by the learned Court, the final order was passed ex-parte.

7.2 Learned counsel further submits that the husband did not

comply with the final order of maintenance as aforementioned,

and that the wife had to move multiple execution applications,

despite which there was non-compliance on his part, and therefore

the learned Court below issued a warrant for his arrest to ensure

his presence.

7.3 Learned counsel also submits that learned Court below has

erred in directing the sum of Rs. 30,000/- to be paid by the

husband to the wife towards monthly maintenance, and that

looking to the income of the husband, it should be enhanced.

7.4 Learned counsel further submits that the husband not only

own a jewelry shop, as aforementioned, but also has a number of

fixed properties in Bikaner.

7.5 Learned counsel also submits that there was not a single line

of cross examination by non-revisionist husband and in such

scenario tht all the averments remained uncontroverted.

7.6 Learned counsel placed reliance on the following case laws:-

7.6.1 Rajesh Burman Vs. Mitul Chatterjee 2008 (10) SRJ

(6 of 8) [CRLR-985/2021]

533 wherein te Hon'ble Apex Court took into consideration Atul

Sashikant Mude Vs. Niranjana Atul Mude AIR 1998 Bombay

234 wherein the Hon'ble Court held that the competent Court is

empowered to pass interim and ad-interim orders of maintenance,

and that the inclusive definition of the same would include food,

clothing, residence, education, medical treatment etc. and R.

Suresh Vs. Smt. Chandra AIR 2003 Karnataka 183 and Ajay

Saxena Vs. Smt. Rachna Saxena AIR 2007 Delhi 39 the

Hon'ble Karnataka High Court and Hon'ble Delhi High Court

respectively, also ruled in the manner discussed hereinabove, and

held that maintenance would include medical expenses within its

purview.

7.6.2 In Komalan Amma Vs. Kumara Pillai Raghavan Pillai

and ors. AIR (2009) SC 636, the Hon'ble Apex Court held that

while making a consideration of the quantum of maintenance, the

amount towards rental expenses along with expenses towards

shelter, food, education, medical attendance and treatment.

7.6.3 In Manohar Lal Vs. Durgesh (2016) DMC 719 Raj.

wherein this Court after taking into consideration the income of

the husband, enhanced the amount of maintenance awarded to

the wife.

8. The revisionist-petitioner in the first case is the respondent

in the second and vice versa.

9. Heard learned counsel for both the parties and, perused the

record of the case and the judgments cited at the Bar.

10. This Court observes that the learned Family Court, in passing

the impugned order, dated 26.10.2021, has taken into

(7 of 8) [CRLR-985/2021]

consideration the income of the parties herein, from the evidences

placed on record before it.

11. This Court observes that the learned Court below has dealt

with the averment made by the husband that he earns an income

of Rs. 6000/- a month, and has categorically found no merit in the

same. The learned Court, after taking into due consideration the

salary certificate of the husband, dated 04.12.2020 and the

photographs of the same, found that the husband was in fact a

proprietor of the jewelry business, and was found to be sitting at

the counter of such business, and that he has made sales of

ornaments on behalf of such business, and his handwriting and

signatures were found on the receipts issued on behalf of the

jewelry business, specifically on receipt dated 01.02.2021

whereby sale of some silver ornaments were found to be made.

And therefore, the averment that the husband making an income

of only about Rs. 6000/- per month, was therefore found to be not

believable.

12. The learned Court below recorded the finding that the wife

and the minor child are fully dependent on her parents, and that

although her parents may be government servants, that the

husband cannot shirk the responsibility of maintaining his wife and

minor son.

13. The learned Court below also recorded the finding that the

husband has not complied with the order of interim maintenance,

dated 03.04.2021, towards his wife and minor son, and was in fact

absconding. Further, that although the husband has the sufficient

means to maintain his wife and minor son, but is wilfully

abstaining from doing the same.

(8 of 8) [CRLR-985/2021]

14. This Court further observes that the learned Court has

passed a reasoned and speaking order, and upheld the order of

interim maintenance of awarding Rs. 30,000/- per month, Rs.

25,000/- towards the wife and Rs.5,000/- towards the minor son,

from the date of application, after taking into due consideration

the overall facts and circumstances of the case, and a thorough

perusal and appreciation of the evidences placed on record before

it, as discussed hereinabove.

15. This Court, in light of the above made observations, finds

that the impugned order dated 26.10.2021, passed by the learned

Family Court does not suffer from any infirmity, and is hereby

affirmed and upheld.

16. Resultantly, the present revision petitions are dismissed.

Accordingly, all pending applications, if any, are disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

176-SKant/-

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