Mataprasad @ Shailendra vs. Sapana @ Nutan

HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR SINGLE BENCH BEFORE JUSTICE S.K.AWASTHI Criminal Revision No 439/2016

Mataprasad @ Shailendra Versus Smt. Sapna @ Nutan and another

------------------------------------------------------------------- Shri M.A.Shah, Advocate for the applicant. Shri Sushil Goswami, Advocate for the non-applicants. -------------------------------------------------------------------

O R D E R (27.01.2017 )

This revision application is directed against the order dated 21.3.2016 passed by Family Court, Gwalior in Case No.16/2015, in which the application filed by the non-applicants for grant of interim maintenance during the pendency of the application under Section 125 of CrPC has been allowed.

2. Facts leading to filing of the instant revision application are that the marriage was solemnized between the applicant and non-applicant No.1. However, due to certain untoward incidents, the non-applicant No.1 started residing separately along with the non-applicant No.2, who is the daughter born out of the wedlock between the applicant and non-applicant No.1. Since the non-applicant No.1 is unable to maintain herself and her daughter, an application under Section 125 CrPC has been filed before the Family Court, Gwalior. In order to get interim maintenance till the decision of the original application by the Family Court, the non-applicant No.1 made an application in furtherance to which the impugned order has been passed and the Family Court fixed Rs.1500/- per month for the non-applicant No.1 and Rs.500/- per month for the non-applicant No.2.

3. The grounds canvassed by the application in the instant revision application are that the non-applicant No.1 is not entitled for any maintenance as she is residing separately out of her own will and she has not honoured the direction of the Civil Court for restitution of conjugal rights. Therefore, the impugned order suffers from illegality and deserves to be set aside.

4. To the contrary, learned counsel for the nonapplicants supported the reasoning given in the impugned order and offered the explanation that the non-applicant No.1 was assaulted by the applicant and was dragged out of her matrimonial house. Therefore, she is entitled to receive the maintenance amount.

5. I have considered the rival contentions and the facts leading to filing of the instant case. This Court is of the opinion that the trial Court committed error in allowing the application of interim maintenance with respect to non-applicant No.1 as prima facie the case is in favour of the applicant in the light of the decree which has been passed in favour of the applicant by the Civil Court for restitution of conjugal rights. Further, the reasoning assigned for fixation of interim maintenance by the Family Court is that on 5.9.2014 the applicant had assaulted the non-applicant No.1, however, there is no document filed on record to substantiate the same. The affidavit of non-applicant No.1 is not offering any explanation for not residing with the applicant. Further, as per the observation of the trial Court, no document to

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show the monthly income of the applicant has been filed. All the circumstances indicate that the discretion has not been correctly exercised by the court below as in absence of any material the fixation of interim maintenance is bad in law.

6. Consequently, the impugned order to the extent it relates to grant of interim maintenance to non-applicant No.1 is set aside. Although in respect of non-applicant No.2, who is the daughter of the applicant, it is the joint responsibility of both the applicant and non-applicant No.1 to maintain the child. Accordingly, the interim maintenance of Rs.500/- per month fixed for nonapplicant No.2 is modified and a sum of Rs.1000/- per month is fixed as interim maintenance to the nonapplicant No.2, which shall be paid regularly on fifth day of each calendar month till the decision of the application under Section 125, CrPC.

7. In the result, the revision application stands partly allowed with the modification in the impugned order indicated herein above.

(S.K.Awasthi) Judge.

(yogesh)