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2019 Supreme(Chh) 979
CHHATTISGARH HIGH COURT
Rajani Dubey, J.
PRAMOD KUMAR SAHU - APPELLANT
Versus
UMA SAHU - RESPONDENT
Criminal Revision No. 498 of 2018
Decided On : 20-12-2019
Subject
Family Law - Maintenance
Act Referred
FAMILY COURTS ACT : S.19(4)
Headnote
Criminal Procedure Code, 1973 – Section 125, 397 and 401 – Family Courts Act – Section 19 – Denied all Allegations – Decree of Divorce – Respondent No.1 married to each other according to existing social customs and out of their wedlock respondent was born – Respondent herein filed an application before learned trial Court on ground that after of marriage applicant/husband and his parents are alleged to have started making taunts against respondent No.1/Wife for bringing insufficient dowry in marriage – Respondents left her matrimonial house and since then she is not residing with applicant – Respondent unable to maintain herself she claimed maintenance – Held, Learned counsel for applicant has strenuously argued that applicant/husband has got decree of divorce on the ground of cruelty same has not been challenged by respondent/wife before any Court of law and as such respondent/wife is not entitled for maintenance – Court does not find much force in the argument of learned counsel for applicant as the Honble Supreme Court in matter of Rohtash – Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on ground of desertion by wife but she was held entitled to maintenance allowance as a divorced wife had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife – Allahabad High Court also instant case has taken a similar approve these decisions as they represent correct legal position – Appeal dismissed.
Manoj Paranjape, Advocate, Vivek Mishra, Advocate, Manish Upadhyay, Advocate
JUDGMENT
Rajani Dubey, J. - Challenge in the present revision filed under Section 19 (4) of the Family Courts Act read with Section 397/401 of the code of Criminal Procedure is to the order dated 04.04.2018 passed by the First Additional Principal Judge, Family Court, Raipur, in M.J.C. No.153/2013 granting Rs.8,000/- to respondent No.1 and Rs.4,000/- to respondent No.2 totaling Rs.12,000/- per month as maintenance.
2. Applicant and respondent No.1 married to each other on 06.05.2009 according to the existing social customs and out of their wedlock respondent No.2-Kavay Sahu was born. The respondent No.-1/wife herein filed an application under Section 125 of Code of Criminal Procedure before the learned trial Court on the ground that after 15 days of marriage, the applicant/husband and his parents are alleged to have started making taunts against the respondent No.1/Wife for bringing insufficient dowry in the marriage, thereafter, respondents left her matrimonial house and since then she is not residing with the applicant. The respondent No.1 is unable to maintain herself, therefore, she claimed maintenance of Rs.20,000/- per month.
3. Applicant/Husband however has denied all the allegations made by his wife replying to the application under Section 125 of the Code of Criminal Procedure. Even the respondent/wife herself did not want to reside with him and is well capable to maintain herself. The respondent/wife is residing separately without any sufficient cause and, therefore, she is not entitled for any maintenance.
4. Before the Family Court, both the parties have adduced their respective evidence. The learned Family Court, after hearing the parties, partly allowed the application of respondents granting maintenance of Rs.8,000/- to respondent No.1 and Rs.4,000/- to respondent No.2 total Rs.12,000/-, which leads to filing of this petition.
5. Learned counsel for the applicant submits that the learned Family Court has failed to consider the monthly income of the applicant as also his source of income. The findings recorded by the Family Court that the respondent is residing separately for the sufficient reason are perverse on the state of evidence on record. He also submits that as many as 4 persons of the applicant's family are dependent on him and the order of maintenance to the tune of Rs.12,000/- is on the higher side. It is also added that the respondent/wife has left the matrimonial house without any sufficient reason, therefore, she is not entitled for maintenance. It is next submitted that on 18.03.2014, the applicant/husband got the decree of divorce on the ground of cruelty and same has not been challenged by the respondent/wife before any court of law, and after the decree of divorce, the applicant herein got married with one Minal and she now pregnant of four months. In support of his argument, he placed reliance on the decision of High Court of Delhi at New Delhi in the matter of Deepak Malhotra Vs. Deepti Malhotra and Ors,2017 SCCOnlineDel 8483 and decision of High Court of Madhya Pradesh in the matter of Anil Vs. Sunita, (2016) LawSuit(MP) 1133 .
6. On the other hand, learned counsel for respondents supported the impugned order passed by the learned trial Court.
7. Heard learned counsel for the parties and perused the material on record including the impugned order.
8. Be that as it may, there is no dispute that the applicant and the respondent No.1 are legally married husband and wife, and as such it is the duty of the husband to take care of his spouse by paying the optimum amount of maintenance so that she is not required to live a helpless hellish life. At the same time, the husband's source of income should also be considered while awarding the maintenance and no random approach in doing so should be adopted. Here in this case, the learned Family Court, after appreciating the evidence of both the parties, recorded its findings in paras 8 to 14 that the respondent/wife is residing separately for sufficient c
