This criminal revision has been preferred against the judgement and order dated 13.7.2010, passed by the Principal Judge, Family Court, Bareilly in Criminal Case No. 482 of 2005 (Smt. Surbhi Agrawal vs. Punit Agrawal), under section 125 Cr.P.C., Police Station Baradari, District Bareilly whereby the application of the revisionist-applicant Surbhi Agrawal moved under section 125 Cr.P.C. for maintenance, was rejected.
The facts which are requisite to be stated for adjudication of this revision are that an application under section 125 Cr.P.C. was moved by Surbhi Agrawal alias Sunita stating therein that her marriage was solemnized with the opposite party no. 2 Punit Kumar Agrawal as per Hindu rites and rituals on 24.4.2004. From the date of the marriage, the opposite party no. 2 and her-in-law used to raise demand of Rs. 2 lacs and motorcycle in dowry and, on non-fulfillment of the said demand, they used to beat the applicant-revisionist. They also used to sarcast taunting remark by saying that she occasionally talked with outsider without any hesitation and also impute unchastity with allegation of gazing the white washner and carpenter etc. The opposite party no. 2 and his family members used to beat and harass her for non-fulfillment of the dowry. It is further averred that father of the opposite party no. 2 was an Administrative Officer in Civil Court in Bareilly and due to creating pressure on the Police Officer, the police has not submitted the real report during mediation. The Police personnel obtained her signature later on and in collusion with opposite party, submitted his false report with respect that she is not willing to live with her husband. The opposite party no. 2 and his family members for sake of dowry also disgraced her and made severe bar upon her freedom. The opposite party no. 2 did not keep her with love and affection rather to beat her. At least, she was ousted also from the house of the husband. The opposite party no. 2 having sufficient mean as he is operating Dharam Kata and also doing business at large scale of Ghee and sugar and earns Rs. 1 lac per month whereas applicant-revisionist is unable to maintain herself.
The opposite party no. 2 denied the allegation and stated that applicant did not perform the marital relation with husband and also did not make a physical relation with him. On being made attempt to make physical relation she used to threat to commit suicide by cutting the artery of the wrist. He did not throw out her from the house whilest she on her free will has gone with his brother to her house. It is also stated that on 11.1.2005 Radha, sister of applicant-Surbhi Agrawal had come to bring of her papers of academic career for applying service in Allahabad. The opposite party no. 2 is willing to live with her wife as he has filed suit for restitution of conjugal right under section 9 of Hindu Marriage Act, 1955 but she refused to live with him.
After hearing the parties learned Principal Family Judge and evaluating the evidence comes to the conclusion that applicant-revisionist is living separately without sufficient cause and, therefore, rejected the application.
Feeling aggrieved, the applicant came up in this revision.
Heard learned counsel for the revisionist and learned AGA for the State. None has appeared on behalf of the opposite party no. 2.
Sri V. Kumar, learned Advocate, has filed Parcha on behalf of the opposite party no. 2 but he has neither filed counter affidavit nor turned up.
I have perused the record.
Learned counsel for the revisionist submitted that the revisionist has been ousted from the house by her husband on non-fulfillment of dowry i.e. Rs. 2 lacs and one motor cycle. The husband-opposite party no. 2 and her-in-law used to sarcast taunting remark by saying that she is educated lady and also keep gazing eyes on outsider occasionally. The revisionist has no means to support her livelihood whereas her husband is operating Dharm Kata and doing business of Ghee.
In this revision, the main point of determination is that whether the opposite party despite having sufficient means neglect or refuse to maintain his wife. More than there is sufficient reasons before the revisionist to live separate from her husband.
Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.:
Order for maintenance of wives, children and parents
125. (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct."
From perusal of the aforesaid provisions, it is clear that an order under section 125 Cr.P.C. can be passed, if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife.
Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The Court held as under:
"Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636.
A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C..
In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:
"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."
After going through the record, it is clear that applicant-revisionist has left the house of her husband on being harassed and tortured on the demand of dowry i.e. motorcycle and Rs. 2 lacs. It has come in the evidence that opposite party no. 2 did suspect on her conduct and character. It will also amount to cruelty. Almost no wife is supposed to leave the house of the husband without any reason. Wife's right to claim maintenance can be denied in the circumstances only provided under section 125 (4) Cr.P.C.
The Hon'ble Supreme Court in Laxmi Bai Patel vs. Shyam Kumar Patel 2002 (44) ACC 1102 SC has held as under:
"To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under sub-section (4) of the said section."
Principle is that when prima facie marriage is established, maintenance should be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The object is to achieve social purpose and to prevent vagrancy and destitute.
The applicant-revisionist is trying to get maintenance since 11.4.2005 through this application but not even a single penny in lieu of maintenance has been received from her husband. The proceeding under section 125(4) Cr.P.C. provides a speedy remedy for supply of food, clothing and shelter to the deserted wife whereas the opposite party no. 2 has failed to establish that applicant-revisionist without any sufficient reason refused to live with him.
In view of what has been indicated above, the impugned order passed by the Principal Judge, Family Court, Bareilly is not justified. Therefore, the impugned order is not liable to be sustained.
The revision is allowed.
The impugned order, passed by the Principal Judge, Family Court, Bareilly in Criminal Case No. 482 of 2005 (Smt. Surbhi Agrawal vs. Punit Agrawal) is hereby set aside and the matter is remanded back to the court concerned for decision afresh expeditiously, preferably within three months.
Office to communicate this order for necessary compliance.
Order Date :- 22.11.2016 Puspendra