An ex-parte decree of restitution does not bar a wife's right to maintenance if she demonstrates justified reasons for separation; maintenance should reflect reasonable comfort aligned with the husband's financial status.

ORDER :

PREM NARAYAN SINGH, J.

With the consent of both the parties, heard finally.

1. This criminal revision has been filed by the petitioner under Section 19 (4) of the Family Courts Act, 1984 and Section 397 of Code of Criminal Procedure, 1973 being aggrieved by the order dated 23.11.2022, passed by learned Principal Judge, Family Court, Ujjain in MJCR No.206/2021, whereby the learned Principal Judge has awarded maintenance of Rs.6000/- per month in favour of the respondent wife and Rs.5000/- per month in favour of Respondent No.2/Gunishka.

2. Brief facts leading to the present petition and submissions of counsel for the petitioner are that the petitioner and the Respondent both profess Hindu religion and are governed by Hindu law. It is an admitted fact that, non Applicant is the wife of the Applicant and both the parties got married as per Hindu rites and rituals on 08/12/2010. Their marriage was ‘solemnized by mutual consent of the parties and after taking account of every detail about the petitioner's family. The Applicant is a an educated unemployed person and lives in Khandwa which is a small place and the living Standards and salaries are also low. The non applicant was well aware of the status of the petitioner and the job profile and then consented to the marriage, while on the other hand the Non Applicant at the time of marriage was B-Tech and persuaded her M-tech after |marriage which was being supported by the Applicant and his family members. Out of this wed lock a daughter is born who is now 11 years of age. Since 8 years of marriage there was no trouble with the matrimonial relationship, but due to various reasons the non Applicant used to have frequent visits to Ujjain, then after some time Applicant realized that the duration of the stay is being enlarged with the visits and the Respondent shown very less interest in discharging her conjugal duties.

3. On 22/03/2018, the Respondent with her parents visit to Ujjain and stayed thereon and when the petitioner asked her to come back she refused to return back to Khandwa and insisted the Applicant to come and settle down in Ujjain with her parents. The Applicant made so many attempts to make her understand that he could not leave his old aged dependent parents, and made many attempts to bring her back to Khandwa, which eventually failed. The petitioner field an application before the learned Principal Judge, Family Court Khandwa under Section 9 of Hindu Marriage Act for restitution of Conjugal Rights and by Judgement dated 21/11/22, the said application was allowed. In counter action, the Respondent filed an application u/s 125 of Criminal Procedure Code,before Family Court Ujjain on falsified grounds and baseless allegation of violence and torture and the learned Family Court, Ujjain has allowed the application and awarded the maintenance amount in favour of the respondent as stated above.

4. Learned counsel for the petitioner submits that the learned Family Court has committed grave error of law in passing the impugned judgment. It is further submitted that the application under Section 9 of Hindu Marriage Act for restitution of Conjugal Rights was allowed by Judgement dated 21/11/22 even then the respondent did not comply the order of family Court. Hence, she has not sufficient ground to live separate from her husband. The learned Trial Court has failed to consider the fact that respondent is living separately without any valid reason. It is settled position of law that the proof of burden i