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2008(2) JLJ 437
Smt. S.R. Waghmare, J.
Shobha (Smt.) v. Krishnakant Pandya
Criminal Revision No. 1560 of 2007 (Indore) : against the order of Family Court, passed in Miscellaneous Criminal Case No.25 of 2005;
Decided on 9.4.2008.
Held : An important fact that cannot be blinked away or marginalized is that both the parties have not filed any case for divorce, which makes it apparent that the pit fall of their marriage lies in the clash of egos. It also explains the inordinate delay of 25 years in filing of application for maintenance since both the petitioner and the respondent are educated persons and teacher by profession then in the light of above, the delay cannot be held as a bar to filing of the application for maintenance and entirely relying on the judgment passed of the apex Court in the matter of Chaturbhuj (supra), the impugned order of the Family Court dated 10.10.2007 is set aside.
Moreover, during the course of the arguments, it was admitted by the learned counsel for the petitioner as well as respondent that the findings of the trial Court were admitted and proved regarding the fact that the respondent husband earned a salary of Rs.13,412/- and his net salary was Rs.10,712/-. Besides, the respondent has also admitted before this Court that he was earning around Rs.10,000/-. Then, under these circumstances, I deem it fit to grant maintenance of Rs.3,000/- per month to petitioner wife Shobha from the date of application for the simple reason that the respondent husband has also not disputed that he did not pay a single penny to the wife for the maintenance of his son Nilesh merely on the basis of the fact that the wife never asked for any maintenance. That, it is an undisputed fact that the wife has herself brought up her son Nilesh single handedly and today unfortunately he has also deserted her and admittedly the petitioner wife is living without any support of either parents or son Nilesh or her husband. The respondent husband shall make payment of the arrears of the maintenance along with interest at the rate of 6% p.a. within a period of two months from the date of this order and continue to pay the maintenance to the wife @ Rs.3,000/- per month before the 10th of each calender month. 2008(2) JLJ 70 (SC) followed. 2005(II) MPWN 33 distinguished. [Paras 13 & 14
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1. This revision petition has been filed by petitioner Shobha w/o Krishnakant being aggrieved by order dated 16.10.2007 passed in Miscellaneous Case No.25/05 dismissing the petitioner's claim to maintenance under section 125 of the CrPC.
2. Brief facts as alleged by the petitioner are that the petitioner was married to respondent Krishnakant on 6th of May, 1982 at Ujjain. As a result of matrimony, petitioner wife gave birth to son Nilesh on 30.1.1983, however, within a short span, the petitioner complained that she was turned out of the house of the respondent husband by his family members, since then she has been residing on and off with her parents. The petitioner wife also gave birth to son Nilesh in her parental home and all the expenses had been borne by her parents. When she had taken the little child along with her to her in-laws at Badnagar, the child was ill-treated and had to be hospitalized despite which she returned to her husband's house. When finally she was turned out by her husband, she did not lose courage, but made an attempt by staying with her parents to try and patch up with the husband. When there was death of her sister-in-law on 10.9.2001, she visited the respondent husband to offer her condolence, but her husband threatened that in case she visited them again, he would commit suicide, then all hope having deserted her, she did not visit her in-laws again. The petitioner wife has alleged that since 1982 her parents were looking after her and her husband has not contributed anything towards the maintenance of herself or her son Nilesh. On death of the parents, she was left with no other alternative, but to claim maintenance for herself and her son which she did by the application for the trial Court on 27.1.2005.
3. After a period of almost 25 years of marriage, she claimed that her husband earned around Rs.20,000 - Rs.30,000/- per month as a teacher and she claimed Rs.6,000/- per month as maintenance. The non-applicant opposed her claim on the ground that he had never refused to maintain either the wife or his child Nilesh. It was the petitioner wife who had herself left the matrimonial home and had failed to file claim maintenance since she herself has refused to return to her matrimonial home and was staying at Ujjain since 1996. The respondent husband also denied the fact that the applicant wife had visited his home at Badnagar or that she had been turned out as claimed. In 1996 on the occasion of Rakshabandhan, she had left the home herself and never returned; even on 10.9.2001 on the death of his sister, she did not turn up as claimed by the petitioner wife at Badnagar, since the condolence meeting was not held at Badnagar at all. Hence, the lies of the petitioner wife were very much evident.
4. Disclaiming her right to maintenance, the respondent husband also claimed that the wife was an employee in the Gitanjali Primary School run by Abhyuthan Mahila Sewa Samiti which was run by her parents. The husband also claimed that son Nilesh had also become a teacher in the said school and both of them did not require maintenance as claimed. Regarding his own income, he stated that he was merely a teacher and did not own any agriculture land as alleged nor did he earn Rs.20,000/- to Rs.30,000/-. Moreover, his parents were dependent on him and the applicant wife and her son Nilesh are not entitled to maintenance as claimed.
5. The trial Court, however, on considering the above evidence led by the parties, came to a conclusion that respondent husband Krishnakant earned gross salary of Rs.13,412/-, as a teacher of the Higher Secondary School at Badnagar, District Ujjain and after the deduction, his net salary was Rs.10,712/- on basis of the various certificates filed by vide EX.P-1 and EX.P-2 and the evidence of Sarita Bargav PW2. However, the claim of the applicant wife was rejected by the trial Court on the ground that the applicant wife had been unable to establish that she was being maltreated by the hus
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