Wednesday, 6 February 2019

Whether order of maintenance passed in favour of wife can be set aside if she is not ready to comply decree for restitution of conjugal rights passed against her?

 Fact remains that the husband Saranan Banerjee had, obtained a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights as against Aparna Banerjee and in spite of conciliation and efforts she is not inclined to live with her husband on the plea that a case for the offence under Section 498A, I.P.C. was pending against the husband on the allegation of torture, misbehaviour, demand of dowry and many other allegations and for such reason she is apprehensive at the hands of her husband Saranan Banerjee. The judgment passed and decree prepared under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is decreed, which cannot be executed by force. I am, therefore, of the opinion that the maintenance amount awarded to the wife Aparna Banerjee and her daughter cannot be sweeped and set aside only on the ground that she was not inclined to abide by the decree of the restitution of conjugal rights prepared against her. 
IN THE HIGH COURT OF ALLAHABAD

Crl. Rev. No. 325 of 2018

Decided On: 07.02.2018

 Vimal Kumar Verma Vs.  Kavita Verma and Ors.

Hon'ble Judges/Coram:
Aniruddha Singh, J.

Citation: 2018 (105) ACC 394


1. Heard learned counsel for the revisionist and learned A.G.A. for the State, and perused the record. This criminal revision under Section 397/401, Cr.P.C., has been filed against judgment and order dated 6.11.2017 passed by Principal Judge, Family Court, Jalaun at Orai in Criminal Misc. Case No. 40/2016 [Smt. Kavita Verma and another v. Vimal Kumar Verma) whereby application of opposite party Nos. 2 and 3 namely Smt. Kavita Verma (wife) and Ansh (son) under Section 125, Cr.P.C. has been allowed and revisionist was directed to pay ` 8,000 per month to his wife and ` 5,000 per month to his son.

2. Learned counsel for the revisionist submitted that maintenance awarded by the court below is higher and his wife/opposite party No. 2 is not willing to live with him, hence no maintenance can be awarded to her and son. Opposite party No. 2 is highly educated and is able to teach children and she has source of income. It has also been argued that wife/opposite party No. 1 did not obey judgment and decree dated 27.11.2017 passed in Marriage Petition No. 52/2016 under Section 9 of Hindu Marriage Act, against which she has filed First Appeal No. 57/2018 under Section 19 of Family Court Act and the same is pending; hence finding of impugned order dated 6.11.2017 passed by Family Court is incorrect.

3. The revisionist is an Assistant Teacher in a Primary school and is getting ` 43,863 per month. His salary must have been increased after 7th Pay Commission. Perusal of pay certificate 25ka/l and 2 issued by S.D.O., Kurchauli Vikas Khand, Nandigaon, District Jalaun shows that revisionist received salary of ` 43,869 for June, 2017 and total ` 62,313 (including arrears of ` 20,493 for May, 2017). This fact has been admitted by the revisionist in his cross-examination. It is proved by the evidence of wife/opposite party No. 2 that he is unable to maintain her and her minor son. In the application of opposite party No. 2 it has been specifically stated that revisionist has tortured and ill-treated her. Seeing the education system, amount awarded by the court below to the son is not excess.

4. Since, First Appeal No. 57/2018 is pending against judgment and decree dated 27.11.2017, maintenance cannot be refused only on the ground of not obeying the said judgment. At this stage, it will not be proper to give finding on this point when the matter is sub-judiced before the competent court.

5. In the case of Saranan Banerjee v. State of Jharkhand, MANU/JH/1129/2006 : AIR 2007 (2) Jhar 82, court has held that an order of maintenance would not be set aside merely on the ground that wife refused to live with the husband despite decree for conjugal rights where she alleges torture and ill-treatment. Paragraphs 11, 12 and 13 are quoted below:

"11. Finally it has been submitted that since the wife is not ready to live with her husband in spite of conciliation and efforts taken by this Court and also in view of the decree of restitution of conjugal rights as claimed by the husband, the wife Aparna Banerjee is not entitled to maintenance at all.

12. Having regard to the facts and circumstances of the case from the perusal of the order impugned passed by the Principal Judge, Family Court, Jamshedpur though I find that the pleading of the wife Aparna Banerjee that her husband had been earning ` 30,000 could not be established, it was gathered that the husband had been earning ` 3,000 to 3,500 per month in course of his temporary employment in Telco. It is also established that the husband has tea-stall of his own and that he purchased a flat. On the basis of such assessment and finding the amount of maintenance awarded to the tune of ` 1,000 to the wife Aparna Banerjee and ` 500 to their daughter per month does not call for interference in revision. But now the fact remains that the husband Saranan Banerjee had, obtained a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights as against Aparna Banerjee and in spite of conciliation and efforts she is not inclined to live with her husband on the plea that a case for the offence under Section 498A, I.P.C. was pending against the husband on the allegation of torture, misbehaviour, demand of dowry and many other allegations and for such reason she is apprehensive at the hands of her husband Saranan Banerjee. The judgment passed and decree prepared under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is decreed, which cannot be executed by force. I am, therefore, of the opinion that the maintenance amount awarded to the wife Aparna Banerjee and her daughter cannot be sweeped and set aside only on the ground that she was not inclined to abide by the decree of the restitution of conjugal rights prepared against her. The order passed by the Principal Judge, Family Court, Jamshedpur in Misc. Case No. 99 of 1998/70 of 2001 on 28th June, 2002 does not call for interference and it is upheld and maintained.

13. Accordingly, both the Criminal Revisions are disposed of."

6. After going through above judgment, court is of the view that present case is fully covered with the case of Saranan Banerjee (supra).

7. Moreover, in the case of Munna Devi v. State of Rajasthan and another. Appeal (Crl.) No. 1138 of 2001 : MANU/SC/0715/2001 : 2001 (3) ACR 2363 (SC), decided on 6.11.2001. Hon'ble Supreme Court has held that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner.

8. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present revision lacks merit and is liable to be dismissed. Hence dismissed. Certify this judgment to the lower court immediately.


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