Surendra Patel vs. Sandhya Patel

The High Court Of Madhya Pradesh

MCRC-3712-2017

(SURENDRA PATEL Vs SMT. SANDHYA PATEL)

Jabalpur, Dated : 28-08-2018

Shri Sanjay Kumar Sharma, counsel for the petitioner.

Shri Salim Ahmad, counsel for the respondents.

This petition under Section 482 of Cr.P.C. has been filed to invoke the extraordinary jurisdiction of this Court and set aside the order dated 05.08.2016, passed by A.S.J., Sehora in Criminal Revision No.345/2010, whereby the Revisional Court has enhanced the maintenance from Rs.500/- to the tune of Rs.2000/- to the respondent No.1 and from Rs.400/- each to respondents No. 2 and 3 to the tune of Rs.1500/- each. Learned J.M.F.C. Sehora in M.J.C. No. 59/2009 vide order dated 20.09.2010 had awarded maintenance of Rs.500/- to the respondent No.1 and Rs.400/- to each of the respondent No.2 and 3.

On behalf of the petitioner-husband, it is claimed that the petitioner-husband is earning only Rs.2,000/- per month. As per the observation made by the learned J.M.F.C. But the Revisional Court has assessed that, the petitioner-husband is earning from his agricultural land, by his profession as R.M.P. doctor and as a driver, hence, enhanced the maintenance of his wife (respondent No.1) and two children (respondents No. 2 and 3). The petitioner contended that that the respondent No.2-Subham Patel is living with the petitioner (his father). Therefore, he need not to pay maintenance for the minor Subham Patel as he is living with the petitioner. Subham Patel presented himself before the Court and identified by the counsel for the petitioner and has stated that he is living with his father (the petitioner-Surendra Patel).

It is also contended that when the income has been assessed to be Rs.2000/-, the order of learned Revisional Court to pay Rs.5000/- in all to the respondents, is not proper.

On behalf of the respondents, learned counsel has submitted that despite registered notice, the petitioner-husband did not appear before the Revisional Court, hence, the Revisional Court had no option but to pass the exparte order on 05.08.2016. It is also contended that the petitioner is having about 5 acres of agricultural land. At the time of evidence, the respondents could not produce the documents relating to the land, as the same was not available with her. It is contended that the petitioner is serving as a driver and earning his salary not less than

Rs.15000/- per month and by practicing medicine as a R.M.P. doctor he also earns.

Heard the counsel. Perused the record.

In the case of Shamima Farooqui vs Shahid Khan, reported in (2015) 5 SCC 705 , the Apex Court has held that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands that there has to be some acceptable arrangements so that she can sustain herself. The principle o f sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. 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 similar manner as she would have lived in the house of her husband.

As regarding the quantum of maintenance, it would be appropriate to mention that the quantum should be adequate so as to enable the wife to live with dignity, similar to the standard with which she would have lived in her matrimonial home. As the wife has absolute right of maintenance, the husband is not absolved his obligation to provide maintenance merely on his plea of financial constraints so long as he is healthy, able bodied and capable of earning for his own support.

Therefore, after appreciating the evidence on record and the circumstances, it would be appropriate to hold that as respondent No.2 has started living with the petitioner-husband, the maintenance of respondent No.2 need not be paid to the respondent No.1-wife. Respondent No.2-Subham Patel is more than 9 years, therefore, his natural guardian would be his father, with whom he is residing.

The respondent No.1-wife is entitled to receive maintenance for herself and for the minor respondent No.3-Lucky Patel. The amount of maintenance granted to respondent No.1, an adult female, @ Rs.2000/ per month is not in the higher side and the maintenance to respondent No.3 Lucky Patel @ Rs.1500/- is also not in the higher side.

As the respondent No.2-Subham Patel is living with the petitioner, the petitioner need not to pay for his maintenance. As regarding, respondent No.1 and respondent No.3, the petitioner will be liable to pay maintenance as awarded by the Revisional Court vide impugned order

dated 05.08.2016.

With the aforesaid modification, the petition is disposed of. C.C. as per rules.

(SUSHIL KUMAR PALO) JUDGE

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