Madhya Pradesh High Court
Smt. Sunita Ghosh vs Shri Pradeep Ghosh on 27 January, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:2102
1 CRR-1613-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 1613 of 2022
SMT. SUNITA GHOSH
Versus
SHRI PRADEEP GHOSH
Appearance:
Shri Prateek Maheshwari, learned counsel for the petitioner.
Shri Ayush Jain, learned counsel for the respondent.
Heard on : 17.12.2024
Pronounced on : 27.01.2025
ORDER
With the consent of the parties, heard finally.
1. This criminal revision has been filed by the petitioner under Section
397 of Cr.P.C., 1973, being aggrieved by the judgment dated 03.03.2022,
passed by learned Additional Sessions Judge, Indore, in Cr.A. No.178/2019,
for setting aside or modifying the impugned order whereby the learned Judge
has allowed the appeal filed by respondent/husband and order dated
16.05.2019, passed by Learned JMFC, Indore granting interim monetary
relief amounting Rs.20,000/- per month under Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as “D.V. Act“), has
been set aside.
2] Brief facts of the case are that the marriage of the parties was
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solemnized on 08.02.2011 as per the Hindu Rites and Rituals. The petitioner
had already given birth to a daughter Arohi out of her previous wedlock. The
respondent was very well aware about the first marriage of the petitioner and
also aware about daughter from first marriage. At the time of marriage the
respondent was working in ICICI Bank while the petitioner was working in
Employees Provident Fund Corporation. Soon after the marriage, behaviour
of the respondent/husband became cruel towards the petitioner as well as
with daughter. The respondent also neglected the petitioner. He used to shout
badly and also used to demand money from her brother. Later on, in the year
2014, the respondent moved to Bhopal on the pretext of a new job, and ever
since the parties are living separately. After failing in attempts of
reconciliation, on 17.05.2018, the petitioner was constrained to file a
complaint under the D.V. Act.
3] Learned counsel for the petitioner/wife has contended that the
learned trial Court as well as Appellate Court have committed grave
illegality in awarding lesser maintenance in favour of wife. The petitioner
was compelled to live separately. The petitioner is liable to get maintenance
as per family status of the respondent, being a wife, she has started to live
separately because of mental and physical cruelty committed by the
respondent. It is further submitted that the impugned order passed by the
learned Appellate Court by refusing to allow the maintenance to the
petitioner and her child, is illegal, incorrect and liable to be set aside since
the very foundation on the basis of which appeal was filed that the
respondent/husband remains unemployed and having no means remained
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completely overturned with the latest affidavit. In view of the judgment,
Rajnesh Vs. Neha reported as (2021) 2 SCC 324 , both parties filed their
respective affidavits, whereby the petitioner made a full and true disclosure
of her income as an employee of Employee Provident Fund Corporation,
earning Rs.55,406/-. It is further submitted that the respondent/husband was
earning about Rs.2 lakhs per month. The respondent/husband made a
disclosure of Salary of Rs.98,000/- per month (Annexure-P/7). He did not
file any salary slip or any other relevant documents. He has also placed his
reliance in the cases of Sunita Kachhwaha Vs. Anil Kachhwaha, (2014) 16
SCC 715, Reema Sulkan Vs. Sumer Singh Sulkan, (2019) 12 SCC 303 and
Shailja Vs. Khobanna, (2018) 12 SCC 199. Hence, the petitioner prayed that
the petition filed by her may kindly be allowed and impugned order dated
03.03.2022 be set aside by modifying the order dated 16.05.2019 passed in
Criminal Case No. 1679/2018 may be modified to some extent as prayed in
the application filed by her.
4] The aforesaid facts were denied by the husband in his reply to the
application by stating that it cannot be prima-facie determined whether any
act of domestic violence has been committed by the respondent. Learned trial
Court has only granted interim maintenance in favour of the petitioner due to
the fact that there were no documents provided by the respondent in respect
of employment of petitioner. It is an admitted fact from the affidavit of
income and assets that the petitioner is a government employee and draws
Rs.58,858/- (net income monthly) per month. She is competent to maintain
herself as she was accustomed to live in her maternal home. Counsel for the
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respondent has also drawn the attention of this Court towards the judgment
of Hon’ble Apex Court in the case of Sanjaysinh Ramrao Chavan Vs.
Dattatray Gulabrao Phalke, (2015) 3 SCC 123 and judgment of Hon’ble High
Court of Delhi in Kanupriya Sharma Vs. State & Anr passed in Criminal
Revision Petition No. 849/2018 and M.A. No. 33234/2018. It is submitted
that the wife is living separately without any cogent reason, and therefore,
she is not entitled for maintenance from her husband. There is nothing on
record regarding the fact that she is not earning anything and non-availability
of such pleading itself is sufficient that she herself is an earning lady. It is
settled position of law that the proof of burden is first placed upon the wife to
prove that the means of her husband are sufficient and she is unable to
maintain herself. On these grounds, counsel for the respondent has prayed to
affirm the impugned order and allow the petition filed by him.
5] I have heard the counsel for the parties and perused the record.
6] In view of the arguments and rival submissions of counsel for
both parties, it is revealed that the petitioner/wife is an employed lady and
earning Rs.58,858/- per month (after deduction from gross salary of
Rs.78,148/- per month). The learned trial Court has awarded interim
maintenance of Rs.20,000/- per month vide order dated 16.05.2019 in favour
of petitioner, however, it is also admitted fact that the petitioner has not filed
any appeal being aggrieved by the aforesaid order. Actually, while deciding
the interim maintenance amount under D.V. Act, the trial Court ought to
consider prima-facie material available on record. In this case, there are
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allegations of cruelty against the respondent which has to be decided after
evidence. In this regard, the respective provisions of Section 23 of D.V. Act
is worth to refer here:-
” 23. Power to grant interim and ex parte orders.–(1) In any
proceeding before him under this Act, the Magistrate may pass such interim
order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie
discloses that the respondent is committing, or has committed an act of
domestic violence or that there is a likelihood that the respondent may
commit an act of domestic violence, he may grant an ex parte order on the
basis of the affidavit in such form, as may be prescribed, of the aggrieved
person under section18, section 19, section 20, section 1 or, as the case may
be, section 22 against the respondent.”
7] In view of the aforesaid law, this Court has gone through the order
of learned Trial Court wherein the Trial Court after discussing a lot regarding
relations of both parties clearly viewed that in order to decide the question as
to whether the respondent has committed domestic violence against the
petitioner or not, the Court has to consider the evidence of both parties. That
means, this question will be determined after taking evidence of both the
parties. However, in this case, learned Trial Court has adjudicated the interim
maintenance in favour of the petitioner only on the basis that the respondent
was unable to brought any document with regard to the service of petitioner.
In this way, the learned Trial Court has awarded interim maintenance
without adjudicating the prima facie case of domestic violence caused
against petitioner. In the case at hand, it is admitted that the petitioner is a
divorcee lady and having a girl child before her marriage with the
respondent. It was also alleged that the respondent was suffering from sexual
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weakness, however, such type of weakness cannot be a part of Domestic
Violence. Under these conditions the order of learned Trial Court for
awarding the interim maintenance in favour of the petitioner without
ascertaining the fact of Domestic Violence is not in accordance with law.
7] Learned counsel for the applicant has placed reliance in the case of
Sunita Kachhwaha (supra). The facts of this case are not similar to the facts
of the present case. In the given case, it is held by the Hon’ble Apex Court
that only on the basis of higher education of the wife, the wife cannot be
eschewed from getting maintenance if she does not earn anything. In that
case the wife was a teacher at Jabalpur and nothing was placed with the
record before the Family Court or before the High Court to prove her
employment or her earnings whereas in the case at hand the income of the
petitioner is admittedly proved as Rs.78,148/- per month. Counsel has also
placed reliance in the case of Shailja (supra) , in that case, as per the income
of wife the maintenance amount was reduced to the extent of 50%. The facts
of the case are different to the facts of the present case. In the case of Reema
Sulkan (supra), the Respective High Court has decided the maintenance of
wife on the basis of notional minimum income of the husband as per the
current minimum wages which was Rs. 10,000/- per month. Apex Court
fount it unreasonable and viewed that while awarding the maintenance
amount, the living standard of the husband and his family, his past conduct
should be considered. This case is also not helpful for the applicant as she is
earning lady.
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8] This case is related to the interim maintenance under Section 23 of
Domestic Violence Act. Learned Trial Court has wrongly decided the
interim maintenance of Rs. 20,000/- in favour of the petitioner without
ascertaining prima facie case of Domestic Violence committed by
respondent against petitioner. Hence, order of the learned Trial Court is not
tenable as per law. So far as the order of learned appellate Court is
concerned, the learned Appellate Court, considering each and every aspect
of the case and after appreciation of the order of the trial Court, set aside the
order of the same. With regard to the amount of interim maintenance, in
view of the aforesaid facts and circumstances and settled position of law and
considering the monthly income of the petitioner/wife Rs.58,858/- per
month, learned Appellate Court has set aside the order of trial Court dated
16.05.2019. So far as the necessity of interim maintenance is concerned, it is
revealed that the petitioner is an employed lady and is earning Rs. 78,148/-
per month. As such, the fact findings of the learned Appellate Court do not
warrant any interference.
9] However, in the considered opinion of this Court while deciding the
award of interim maintenance under D.V. Act, the Courts are obliged to
consider the principles of maintenance under Section 125 of Cr.P.C. On this
aspect, it is asserted in Badshah Vs. Sou. Urmila Badshah Godse [AIR
(2014) SCW 256], the purposive interpretation needs to be given to
provision of Section 125 of Cr.P.C. and it is bounden duty of Courts to
advance cause of social justice. It is time honoured principal that the wife is
entitled to a financial status equivalent to that of the husband. Under Section
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125 Cr.P.C. the test is whether the wife is in a position to maintain herself in
the way she was used to live with her husband. In Bhagwan v. Kamla Devi
(AIR 1975 SC 83), it was observed that the wife should be in a position to
maintain standard of living which is neither luxurious nor penurious but what
is consistent with status of a family. The expression “unable to maintain
herself” does not mean that the wife must be absolutely destitute before she
can apply for maintenance under Section 125 Cr.P.C.
10] The aforesaid legal propositions with regard to the maintenance
awarded under Section 125 of Cr.P.C., however, it is also applicable while
deciding the interim maintenance amount under Section 23 of D.V. Act. At
this juncture, the following excerpts of Rajnesh Vs. Neha and Ors., [(2021) 2
SCC 324] is reproduced below :-
“The test for determination of maintenance in
matrimonial disputes depends on the
financial status of the respondent, and the
standard of living that the applicant was
accustomed to in her matrimonial home. The
maintenance amount awarded must be
reasonable and realistic, and avoid either of
the two extremes i.e. maintenance awarded to
the wife should neither be so extravagant
which becomes oppressive and unbearable
for the respondent, nor should it be so meager
that it drives the wife to penury. The
sufficiency of the quantum has to be
adjudged so that the wife is able to maintain
herself with reasonable comfort.”
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However, the net income of petitioner is admittedly established as
Rs.58,858/- per month. On the other side, the wife/petitioner is living
separately alongwith minor child. So far as the income of respondent as
disclosed in his affidavit, it has no use for giving interim maintenance unless
the fact of domestic violence against the petitioner is prima facie established.
Hence, the requirement of maintenance for wife and ability of husband for
awarding maintenance is not required to be ascertained.
11] In view of the aforesaid settled proposition of law, interim
maintenance for wife can only be awarded when she is able to prove prima
facie that she is suffering from domestic violence caused by
respondent/husband. In the case at hand, no prima facie case is made out in
favour of petitioner so that she can get any interim maintenance from her
husband. The learned Appellate Court after considering all aspects of the
case allowed the appeal of petitioner. The order of learned Appellate Court is
mainly based on the income of the petitioner which is not purverse in the
eyes of law and facts. On this aspect, the learned Court for respondent has
relied upon the judgment of Sanjaysinh Ramrao Chavan (Supra) wherein it is
held by Hon. Apex Court
” Unless the order passed by the Magistrate is perverse
or the view taken by the court is wholly unreasonable or
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there is non- consideration of any relevant material or
there is palpable misreading of records, the revisional
court is not justified in setting aside the order, merely
because another view is possible. The revisional court is
not meant to act as an appellate court. The whole
purpose of the revisional jurisdiction is to preserve the
power in the court to do justice in accordance with the
principles of criminal jurisprudence. Revisional power
of the court under Sections 397 to 401 of Cr.PC is not
to be equated with that of an appeal. Unless the finding
of the court, whose decision is sought to be revised, is
shown to be perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or where the
decision is based on no material or where the material
facts are wholly ignored or where the judicial discretion
is exercised arbitrarily or capriciously, the courts may
not interfere with decision in exercise of their revisional
jurisdiction.”
12] In view of the aforesaid law, considering all aspects of the case,
the impugned order of Appellate Court dated 03.03.2022 is not suffering
from any impropriety, illegality and incorrectness. Hence, the revision
petition filed by the petitioner/wife is having no merits and is hereby
dismissed.
13] In view of the aforesaid, Criminal Revision No. 1613/2022 is
hereby dismissed.
14] A copy of this order be sent to the trial Court as well as
Appellate court for information.
Certified copy as per rule.
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(PREM NARAYAN SINGH)
JUDGE
VD
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