Tuesday, 11 October 2016

Whether husband is liable to pay maintenance to wife and children even if wife is residing in house of husband?

On considering the above submissions I find that
the sole consideration before this Court is whether the
Appellate had erred in passing the order of
maintenance against the petitioner/husband in the
light of the fact that the petitioner/husband was living
elsewhere and the respondent/wife was residing with
the in-laws in the house which was in the name of the
husband. I find that there is no infirmity in the order
passed by the Trial Court primarily because it is not a
case, where the wife has left the house of the husband,
but under the peculiar facts and circumstances of the
case, it is the husband who has left the shared
household, but that would not relieve him from
paying maintenance to his wife and children.
Apparently children are aged 16 and 14 years and in
these days of inflation, schooling is expensive and the
aged father-in-law has also supported the daughter-inlaw,
whereas the husband has lost the suit of divorce
then, under the circumstances, I have no hesitation in
holding that wife is entitled to the maintenance as
alleged by the Courts below, besides what has been
ordered is also reasonable under the circumstances
and on that score also the impugned orders does not
call for any interference. The judicial conscience of
the Court cannot shut itself from the peculiar facts and
circumstances of the case. Moreover, this being a
criminal revision, the findings of fact by the lower
courts are unassailable, as the Court cannot reappreciate
the entire evidence and the jurisdiction
being limited to question of law and errors apparent
on the face of record, I do not find any infirmity in the
order passed by the lower Court.
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
 Hon'ble Mrs. Justice S.R. Waghmare
Criminal Revision No. 949 / 2015
 Naresh Sharma
Vs.
Jyoti Sharma

Citation: 2016 CRLJ3113 MP

(Passed on 10/02/2016)



By this revision under section 397 r/w 401 of the
Cr.P.C., the petitioner husband Naresh Sharma has
been aggrieved by the order dated 25/06/2015 passed
by the 8th Additional District and Sessions Judge in
Criminal Appeal No.363/2014 under Section 29, The
Protection of Women Domestic Voilence Act, 2005.
Briefly stated, the facts of the case in nutshell are
that the respondent Jyoti Sharma was married to the
present petitioner on 12/12/1997 and there are two
sons Yethin and Sanskar born out of the wed lock
aged 16 and 14 years respectively. Respondent/wife
was residing with the petitioner/husband in house
no.3502, Sector-E, Sudama Nagar, Indore.
Thereafter, the petitioner /husband brought a flat
no.209, Gold Arcade 3/1, New Palasiya in the name
of his wife in which he conducted computer training
and service classes. Thereafter, there was marital
discord and the respondent/wife started interfering
with the business and the training institute of the
petitioner/husband. The petitioner/husband filed a
petition for divorce in the Family Court, whereas the
respondent/wife filed case under Section 12 of the
Domestic Violence Act before the Judicial Magistrate,
Class-I, Indore. The petition for divorce was
dismissed, whereas in the case filed by the wife, the
Court directed the payment of maintenance to the
wife at Rs.2,000/- and Rs.1,000/- to each of the child
in total Rs.5,000/- per month to the wife. Being
aggrieved the petitioner has filed an appeal before the
8
th Additional District and Sessions Judge, who also
dismissed the appeal, upheld the findings of the
Judicial Magistrate and hence the present petition.
Counsel for the petitioner vehemently urged the
fact that it was the wife and her conduct which was
responsible for the marital discord. Moreover, the
wife had sufficient income of her own in the nature of
fixed deposit of Rs.3,03,000/-, from which she had
sufficient interest and income. Moreover, the
appellant husband has also filed case for custody of
the children and the flat which was being claimed by
the wife was actually belonging to the husband and
having been given it on rent she had sufficient income
for her own. Counsel for the petitioner also
vehemently urged the fact that the wife was not
entitled to the maintenance as claimed placing
reliance on Sunil Madan v. Rachna Madan & Anr.
[CRL.M.C.3071/2008] decided by the High Court
of Delhi wherein the Court observed that it was not a
shared household, on the one hand, the petitioner had
offered alternative residential accommodation to his
wife, who on other hand has sought direction of his
removal from the said premises, alleging that he can
stay in farm house at Sohna, Haryana. Under the
circumstances, the Court had held that it cannot agree
with the wife that the petitioner, who is the owner of
the house and in view of the settlement that was
arrived at between them by the virtue of which she
got few properties, should be directed to leave the
premises and made to stay in a farm house at far away
place. Counsel submitted that in the present case also,
the respondent/wife was living with the father-in-law
in the house belonging to the petitioner himself and
had driven him out from the house and he was
constrained to live in rented premises and father-inlaw
was fully supporting the daughter-in-law and the
house did not belong to the father-in-law and in this
sense, it cannot be said that it was a shared house
hold. In the matter of Sunil Madan (Supra) Court
also relied on Ajay Kumar Jain v. Baljit Kaur Jain,
160(2009) DLT 401 (DB), wherein the Court
observed thus:
“wife cannot have right to live in a particular
property and the same cannot become a clog on the
property denying the right of the husband to deal
with the property when he is willing to provide an
alternative matrimonial home to her. It was also held
that she cannot insist on residing in the suit property
alone when the husband had offered a suitable
alternative arrangement for her. In the given facts
situation, the petitioner, who undisputedly has
acquired this house in his name from his earnings
cannot be made to leave this house and go and suffer
alone in a far away place at his age”
Counsel submitted that when just and reasonable
offer was made to the respondent / wife to shift to the
flat which was already in her name she has disputed
that the flat was given on rent, however, when it was
stated that from the rent she has sufficient income to
look after herself and her children, she claimed that
she is without any source of income. Counsel prayed5
for setting aside the order of maintenance passed by
both the Courts below submitting that the wife had
sufficient means of her own to look after herself.
Counsel also placed reliance on Sanjay Bhardwaj &
Ors. v. The State & Anr. [Crl.M.C. No.491/2009]
whereby in the case under the Domestic Violence Act,
the Trial court had failed to consider that the husband
had lost his job in Angola(Africa) where he was
working before marriage because his passport was
seized by police and he could not join his duties back.
After marriage he remained in India, he was not
employed and hence the Court had held that under the
Domestic Violence Act, the Magistrate has to pass the
maintenance order as per the rights available under
existing laws.
Counsel vehemently urged the fact that the
Constitution provides equal treatment irrespective of
sex, caste & creed and if the wife is educated, the
husband cannot be burdened to look after the wife,
when she has sufficient source of income and Counsel
prayed that the impugned orders passed by the Courts
below be set aside.
Per Contra Counsel for the respondent/wife has
vehemently urged the fact that the husband was living
in adultery with another women and the
respondent/wife has fully sympathy of her in-laws.
Moreover, she was living with the father-in-law and
wanted her husband to accompany them, whereas, the
husband was bent upon evicting his own father as
well as the present respondent/wife from the house.
Moreover, the rented accommodation was not suitable
for their residence neither did she have any adequate
source of income as being alleged. Counsel relied on
V.D. Bhanot v. Savita Bhanot I(2012) DMC 482
(SC), wherein the Apex Court had directed the
petitioner to provide a suitable portion of his
residence to respondent for her residence, together
with all necessary amenities to make such residential
premises properly habitable for respondent and the
petitioner shall also pay total sum of Rs.10,000/- p.m
to respondent towards her maintenance and day to day
expenses. Also relying on Prabhakaran v. State of
Kerala [I (2009) DMC 616], whereby the Apex
Court had held that the wife has right to live in
household whether it be joint family house of husband
or residential building of parents-in-law, if wife lives
or has at any stage lived in domestic relationship
either singly or along with husband then the building,
even if belongs to father of husband has to be treated
as “shared household: in view of inclusive definition
of “shared household” contained in Section 2(s) read
with Sections 17 and 19 of Act, Counsel submitted
there was no infirmity in the present case also
regarding the shared household, similarly the wife is
entitled to live in shared household.
Counsel also relied on Anil v. Sudesh [III(2013)
DMC 715 (P&H)] wherein the Court had held that
the wife is entitled to live in shared household and no
infirmity much less perversity, illegality or
jurisdictional error in impugned order of Courts below
to call for interference by this Court in exercise of
revisional jurisdiction. Further Counsel placed
reliance in the matter of Bulu Das v. Ratan Das
[II(2010) DMC 769] whereby the Gauhati High
Court held thus:
“Domestic Violence, continuing
cause of action. Domestic violence not only
includes mental harassment through verbal or
emotional abuse but also emotional and
economic abuse. Since the act of domestic
violence are continuing there is continuing
cause of action under Act of 2005 and the wife
is competent to file complaint under Act.”
Counsel for the respondent/wife has supported both
the orders passed by the Courts below and prayed for
dismissal of the present petition.8
On considering the above submissions I find that
the sole consideration before this Court is whether the
Appellate had erred in passing the order of
maintenance against the petitioner/husband in the
light of the fact that the petitioner/husband was living
elsewhere and the respondent/wife was residing with
the in-laws in the house which was in the name of the
husband. I find that there is no infirmity in the order
passed by the Trial Court primarily because it is not a
case, where the wife has left the house of the husband,
but under the peculiar facts and circumstances of the
case, it is the husband who has left the shared
household, but that would not relieve him from
paying maintenance to his wife and children.
Apparently children are aged 16 and 14 years and in
these days of inflation, schooling is expensive and the
aged father-in-law has also supported the daughter-inlaw,
whereas the husband has lost the suit of divorce
then, under the circumstances, I have no hesitation in
holding that wife is entitled to the maintenance as
alleged by the Courts below, besides what has been
ordered is also reasonable under the circumstances
and on that score also the impugned orders does not
call for any interference. The judicial conscience of9
the Court cannot shut itself from the peculiar facts and
circumstances of the case. Moreover, this being a
criminal revision, the findings of fact by the lower
courts are unassailable, as the Court cannot reappreciate
the entire evidence and the jurisdiction
being limited to question of law and errors apparent
on the face of record, I do not find any infirmity in the
order passed by the lower Court. The petition is
bereft of merits and is dismissed as such.
C.c as per rules.
 (Mrs. S.R. Waghmare)
 Judge

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