Court: CHHATTISGARH HIGH COURT
Bench: JUSTICE Dilip Raosaheb Deshmukh
VINITA DEVANGAN Vs. RAKESH KUMAR DEVANGAN On 1 May 2009
It is for wife to plead and prove that she was unable to maintain her for grant of maintenance in Section 125.
This criminal revision is directed against the order dated 20.8.2007 passed in Case No. 75/05 by the 2nd Additional Principal Judge, Family Court, Raipur, whereby the application under Section 125 of the Cr. P. C. for grant of maintenance filed by the petitioner herein was dismissed on the ground that the petitioner had income from a Boutique and was thus possessed of means of earning livelihood.
2. Brief facts are that the petitioner was compelled by her family members to marry the non-applicant on 30.6.2001 even though she was in love with other person. Differences erupted within 3 months of her marriage to the non-applicant. The petitioner left her matrimonial home and started living with her parents. A document Ex.D8 was executed by the petitioner whereby she agreed to give divorce to the non-applicant and also relinquished her right to claim maintenance thereafter. A decree for dissolution of marriage by mutual consent was passed in Civil Suit No. 297A/2002 by judgment dated 16.6.2003 by the 5th Additional District Judge, Raipur. On 16.12.2003 an application under Section 125 of the Cr.P.C. for grant of maintenance was filed by the petitioner. On 30.3.2000 the non-applicant husband was proceeded ex parte. On 1.4.2006 an order was passed by the 2nd Additional Principal Judge, Family Court, Raipur, whereby maintenance of Rs. 900 was awarded to the petitioner from the date of order. The ex parte order was set aside in M.J.C. No. 85/2008 on 8.5.2007. Repeated efforts for reconciliation between the parties by the Family Court failed. The petitioner and the non-applicant adduced evidence by affidavits under Order 18 Rule 4 of the Code of Civil Procedure and were cross-examined. The non-applicant examined Md. Abdul Kaish to substantiate that the petitioner was earning from the Boutique. By the impugned order, the application under Section 125 of the Cr.P.C. was dismissed.
3. Mr. Kshitiz Sharma, learned Counsel for the petitioner urged that the Family Court erred in taking into consideration the stipulation in the agreement Ex.D8 regarding relinquishment of her right to claim maintenance. Placing reliance on Ranjit Kaur v. Pavittar Singh, 1992 Cr.LJ 262, it was urged that such an agreement being opposed to public policy and against the clear intendment of Section 125 of the Cr.P.C. cannot be enforced or be shield in a Court of Law to the non-applicant for avoiding to pay maintenance to a divorced wife who was unable to maintain herself.
4. On the other hand, Mr. Malay Kumar Bhaduri, learned Counsel for the non-applicant while arguing in support of the impugned order placed reliance on Shrawan Sakharam Ubhale v. Sau. Durga Shrawan Ubhale and Others, I (1990) DMC 299=1989 Cr.LJ 211, urged that the Family Court was justified in taking into consideration the stipulation in the agreement between the two spouses which formed the basis for living separately by mutual consent whereby the petitioner had relinquished her right to claim maintenance.
5. Having considered the rival submissions, I have perused the record. I find myself in complete agreement with the view taken in Ranjit Kaur v. Pavittar Singh (supra) that a stipulation regarding relinquishment of the right to claim maintenance from the husband in an agreement between the two spouses which formed the basis for divorce by mutual consent is opposed to public policy and cannot be enforced or used by the husband as a shield for avoiding payment of maintenance to the divorced wife in a Court of Law. I find myself unable to fall in line with the view taken by the Bombay High Court in Shrawan Sakharam Ubhale v. Sau. Durga Shrawan Ubhale and Others (supra).
6. Under Section 125(1) of the Cr.P.C. a Magistrate of the First Class may upon proof of the fact that any person having sufficient means had neglected or refused to maintain his wife who was unable to maintain herself order such person to make payment of a monthly allowance for the maintenance of his wife. It is not in dispute that the marriage between the petitioner and the non-applicant was dissolved by mutual consent in Civil Suit No. 297A/2002 by judgment dated 16.6.2003 by the 5th Additional District Judge, Raipur. Under the explanation to the third proviso to Section 125(1) of the Cr.P.C. a wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Thus, even a divorced wife is entitled to maintenance under Section 125 of the Cr. P.C. till she remarries. An order awarding maintenance to such wife can be passed upon proof of the fact that she was unable to maintain herself. It is, therefore, for the wife to plead and proved that she was unable to maintain herself.
7. A perusal of the pleadings of the petitioner and her evidence before the Family Court shows that the petitioner had suppressed material facts and did not come to the Court with clean hands. In para 4 of the application under Section 125 of the Cr. P.C. she has stated as under:
“(Hindi matter omitted)”
8. The non-applicant had specifically pleaded that the petitioner had income from business and was able to maintain herself. In her affidavit under Order 18 Rule 4 of the Code of Civil Procedure the petitioner had stated that she had no means of earning. However, she admitted in cross-examination that pamphlet Ex. SI regarding the inaugural function of Fab Art Boutique was published. She also admitted her signatures on printed receipts issued by Fab Art Boutique Ex. D3 to Ex. D7. She also admitted that the Boutique had commenced on 5.12.2003, i.e., prior to the filing of application under Section 125 of the Cr.P.C. on 16.12.2003. Although she stated that the proprietor of the Boutique was one Kiran Mahobia yet she did not examine Kiran Mahobia. It is also pertinent to note that in his affidavit Horiram Devangan, father of the petitioner did not deny that the petitioner was running a Boutique though he admitted in cross-examination that the petitioner had a diploma in fashion designing. It is also vital to note that Horiram Devangan denied that the petitioner was dependent on him. No disclosures were made as to how the petitioner was making both ends meet. It would thus appear that the petitioner had suppressed the fact of being the proprietor of a Boutique which had commenced from 5.12.2003.
9. On the other hand, the non-applicant has specifically sworn an affidavit that the petitioner owns the Fab Art Boutique situated in Gudiyari which had telephone number 2592323. There is nothing in cross-examination to rebut his testimony. Use of a telephone is also admitted by the petitioner in her testimony. The testimony of Md. Abdul Kaish further substantiates that the petitioner is running a Boutique and has income therefrom.
10. In Chaturbhuj v. Sita Bai, I (2008) DMC 22 (SC)=IX (2007) SLT 592=(2008) 2 SCC 316, it was held that where the personal income of the wife is insufficient she can claim maintenance under Section 125 of the Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The wife should be in a position to maintain a 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 of the Cr.P.C. It was, therefore, incumbent on the petitioner to have come to the Court with clean hands and to divulge the income from the Boutique and pray that the same was not insufficient to maintain herself. However, the petitioner has suppressed material facts and did not come to the Court with clean hands. The bald assertion by the petitioner in her affidavit that she had no means of earning was rebutted by the testimony of the non-applicant and his witness. In this view of the matter, dismissal of the application under Section 125 of the Cr.P.C. by the impugned order cannot be faulted with.
11. The criminal revision has no merit and is accordingly dismissed.
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