NEUTRAL CITATION NO.

2024:MPHC-IND:35455
VERDICTUM.IN

1 CRR-34-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 34 of 2023
DEEPAK NEELKANTH
Versus
SMT. PRIYANKANEELKANTH AND OTHERS
Appearance:

Shri Swati Sharma - advocate for the petitioner.

Shri Gopal Singh Bhadoria, learned counsel for the respondents.

Reserved on 22.10.2024
Delivered On 12.12.2024
ORDER

With the consent of both the parties, heard finally.

1. This criminal revision has been filed by the petitioner under Section
19(4) of the Family Courts Act, 1984 and Section 397 of Code of Criminal
Procedure, 1973 being aggrieved by the order dated 23.11.2022, passed by
learned Principal Judge, Family Court, Ujjain in MJCR No.206/2021,
whereby the learned Principal Judge has awarded maintenance of Rs.6000/-

per month in favour of the respondent wife and Rs.5000/- per month in
favour of Respondent No.2/Gunishka.
2. Brief facts leading to the present petition and submissions of
counsel for the petitioner are that the petitioner and the Respondent both
profess Hindu religion and are governed by Hindu law. It is an admitted fact
that, non Applicant is the wife of the Applicant and both the parties got
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married as per Hindu rites and rituals on 08/12/2010. Their marriage was
‘solemnized by mutual consent of the parties and after taking account of
every detail about the petitioner's family. The Applicant is a an educated
unemployed person and lives in Khandwa which is a small place and the
living Standards and salaries are also low. The non applicant was well aware
of the status of the petitioner and the job profile and then consented to the
marriage, while on the other hand the Non Applicant at the time of marriage
was B-Tech and persuaded her M-tech after |marriage which was being
supported by the Applicant and his family members. Out of this wed lock a
daughter is born who is now 11 years of age. Since 8 years of marriage there
was no trouble with the matrimonial relationship, but due to various reasons
the non Applicant used to have frequent visits to Ujjain, then after some time

Applicant realized that the duration of the stay is being enlarged with the
visits and the Respondent shown very less interest in discharging her
conjugal duties.
3. On 22/03/2018, the Respondent with her parents visit to Ujjain and
stayed thereon and when the petitioner asked her to come back she refused to
return back to Khandwa and insisted the Applicant to come and settle down
in Ujjain with her parents. The Applicant made so many attempts to make
her understand that he could not leave his old aged dependent parents, and
made many attempts to bring her back to Khandwa, which eventually failed.
The petitioner field an application before the learned Principal Judge, Family
Court Khandwa under Section 9 of Hindu Marriage Act for restitution of
Conjugal Rights and by Judgement dated 21/11/22, the said application was
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allowed. In counter action, the Respondent filed an application u/s 125 of
Criminal Procedure Code,before Family Court Ujjain on falsified grounds
and baseless allegation of violence and torture and the learned Family Court,
Ujjain has allowed the application and awarded the maintenance amount in
favour of the respondent as stated above.
4. Learned counsel for the petitioner submits that the learned Family
Court has committed grave error of law in passing the impugned judgment.
It is further submitted that the application under Section 9 of Hindu Marriage
Act for restitution of Conjugal Rights was allowed by Judgement dated
21/11/22 even then the respondent did not comply the order of family Court.
Hence, she has not sufficient ground to live separate from her husband. The
learned Trial Court has failed to consider the fact that respondent is living
separately without any valid reason. 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. Therefore, order
of maintenance has wrongly been passed and deserves to be set aside.
5. Learned counsel for the respondents submits that the learned family
Court has passed the impugned order after considering each and every aspect
of the case as well as the income and status of family of the petitioner. The
respondent is residing separately with sufficient reasons. In so far as the
decree under Section 9 of the Hindu Marriage Act for restitution of Conjugal
rights is concerned, the said decree was exparte decree in favour of petitioner
and he himself was not interested to keep the respondent wife with him

alongwith her girl child. The respondent herself is not earning and she has
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to bear the burden of her daughter also. Hence, prays for dismissal of the
petition.
6. I have heard the counsel for the petitioner and perused the record.
7 . From the bare perusal of the impugned order as well as material
available on record, it is crystal clear that the learned Family Court has
rightly observed that the husband is having sufficient means of source of
income. The learned family court has observed that the petitioner is an
educated and working man and the petitioner has filed no prove regarding
income of the respondent wife. It is also clear that the respondent has also to
bear the burden of study and other expenses of daughter. In this regard the
statements of Smt Priyanka (NAW-1) and the petitioner Deepak Neelkanth
(AW-1) have been considered. She has clearly supported her case with
regard to the financial condition of her husband which has not been rebutted
by the petitioner in his Court statements. Therefore, the findings of learned
trial Court regarding quantum of maintenance cannot be said to be on higher
side. Further, as per the settled provisions of law, the wife is also entitled to
maintain socio-economic status as per the financial status of her husband.
8. So far as the order dated 21.11.2022 passed by learned Principal
Judge Family Court, Khandwa is concerned, it is an exparte order so it has
no binding effect on the proceedings under Section 125 of Cr.P.C. The
respondent herself is not an earning lady and she has also to bear the
expenditures of her daughter, therefore, it cannot be said that the impugned
order is passed against law and there is any infirmity.
9 . Now, the question brought before this Court is whether the
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respondent is not entitled to get maintenance because she is living separately
without sufficient reason. In this regard, the petitioner has stressed that he
has obtained a decree from the Court of Principal Judge, Family Court
Khandwa under Section 9 of HMA and the same is not being complied with
by the respondent/wife. Here, it is important to mention that the said order
passed by Family court Khandwa is an exparte order against
respondent/wife. On this aspect, the respondent wife has deposed that since
she has not male child, her mother and sister-in-law have used to harass her.
Actually, her in-laws including her husband/petitioner are not properly
behaving with her. She has also alleged that in 2015, she was forcibly
aborted and thereafter, a compromise was executed between the parties, but it
was not complied with by her in-laws and husband too. In her cross-
examination, on this point, she has been questioned that her husband wanted
to keep her with him and in reply, she has stated that the behavior of her
husband is not good with her. Now, in such condition, only on the basis of
the fact that the petitioner has obtained exparte decree under Section 9 of
HMA in his favour whether he can avoid to maintain his wife? Only getting
the decree under Section 9 of HMA is not sufficient to prove that wife has no
sufficient reason to live separate from her husband.
10. On this aspect, High Court of Delhi in the case of Babita vs.
Munna Lal [2022 SCC Online Del 4933] has elaborately considered the issue
involved in the present petition as under:-

"54. The learned Trial Court, in the proceedings

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under Section 125 Cr. P.C., had to conduct an
independent inquiry since it was supposed to and was
duty bound to appreciate evidence which was before it
to reach a conclusion as to whether the complainant had
been able to make out her case fulfilling the conditions
for grant of maintenance under Section 125 Cr. P.C. or
not, and thereafter could have decided as to whether on
the basis of ex-parte decree of restitution of conjugal
rights, she had disentitled herself from grant of such
relief.
MERE DECREE OF SECTION 9 HMA DOES
NOT DISENTITLE GRANT OF MAINTENANCE
UNDER SECTION 125 Cr. P.C.
55. There is nothing in law to debar grant of
maintenance under Section 125 Cr. P.C. in case a decree
of restitution of conjugal rights is possessed by the
husband. 56. There is no express bar to grant
maintenance to a wife, against whom a decree for
restitution of conjugal rights under Section 9 of the
Hindu Marriage Act has been passed. There is,
therefore, no bar to entertain application for grant of

maintenance.
57. Thus, this Court holds that the view held by
the learned Trial Court that an order of a Civil Court
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granting ex-parte decree of restitution would
automatically put an end to her right to grant on
maintenance under section 125 Cr. P.C. is incorrect. In
case it was contested by both the parties and then would
have been decided in favour of the husband and being
in default in not returning, in these circumstances it
could become a ground to deny maintenance to her. An
ex-parte decree for restitution of conjugal rights is not
an absolute bar for consideration of application under
section 125 Cr. P.C. In case the court is satisfied on the
basis of evidence before it that the wife had justifiable
grounds to stay away from the husband, maintenance
can be granted. In the case at hand, the learned judge
clearly mentioned in the order that the wife had led
evidence to prove that she had everyreason to stay away
from the husband as there was risk to her life at the
hands of the husband. The learned Judge should have in
that case decided the case based on the said evidence,
which unfortunately, he did not even assess or
appreciate. If the evidence on record shows that due to
husband's conduct the wife has not been able to live
with him and he has denied to maintain her and the
minor children, maintenance cannot be refused to her.
58. A decree of a Civil Suit can be held to be
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binding qua leaving company of husband without
reasonable cause, only if proceedings before the Civil
Court 9 of HMA dealing with case under Section
specific issue has been framed in this regard and the
parties have been given opportunities to lead evidence
and specific findings are recorded by the Civil Court on
contested merit. However, in cases where the husband
has obtained an ex-parte decree of conjugal rights from
a Civil Court, it cannot be held to be binding on the
court exercising jurisdiction under Section 125 Cr. P.C.
59. The mere presence of a decree of restitution
of conjugal rights against the wife does not disentitle
her to claim maintenance if the conduct of the husband
is such as to ensure that she is unable to obey such a
decree or it was the husband who had created such
circumstances that she could not stay with him."

11. On this aspect, considering the almost similar facts and

circumstances of the case, the Co-ordinate Bench of this Court (Jabalpur
Bench) in the case of Avedesh Kumar Tiwari vs. Smt. Chitra Tiwari passed
in CRR No.1447/2011 dated 28.08.2015 has clearly held that "when the
applicant did not lead any evidence before the trial Court and ex-parte order
of maintenance was granted then, the evidence lead in the case under Section
9 of the Hindu Marriage Act cannot be applied in the maintenance case with
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retrospective effect." Therefore, the findings of concerned Court arrived at in
the proceedings of final decree passed under Section 9 of the Hindu Marriage
Act is not having any binding effect on the trial Court/Family Court at the
time of passing the judgement regarding grant or non-grant of maintenance
under Section 125 of Cr.P.C.
12. In view of the aforesaid settled law, only on the basis of decree in
favour of petitioner under Section 9 of HMA, it cannot be assumed that the
husband is willing to keep his wife with him. Actually, behaviour of husband
with his wife is material in such type of cases. Even if husband obtained a
decree under Section 9 of HMA in his favour, it would be expected from him
that he must behave properly with his wife and keep her with him in good
manner. If a person misbehaves and commits cruelty with his wife, she has
every reason to live separate from her husband. Only on the basis of exparte
decree, a destitute wife cannot be precluded from getting maintenance from
her husband.
13. It is time honourned principal that the wife is entitled to have a
financial status equivalent to that of the husband. In this Case, the respondent
has proved that she is unable to maintain herself. Certainly, she would get
only the maintenance amount from her husband which is neither luxurious
nor penurious but in any way, it should be in accordance with financial status
of husband. 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.”
14. At this juncture, the following excerpts of Rajnesh Vs.Neha and
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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."

15. In view of the aforesaid analysis and law laid down by this Court
in the case of Avedesh Kumar Tiwari (supra) as well as High Court of Delhi
in the case of Babita (supra) , in the considered opinion of this Court, only on
the basis of getting exparte decree under Section 9 of HMA in favour of
husband and against wife, a destitute wife cannot be eschewed to get
maintenance from her husband. Hence, the maintenance amount awarded by
the learned Family Court appears to be just and proper, therefore, no
interference is called for with the findings of impugned order. Accordingly,
this revision petition filed by the petitioner fails. Resultantly, the present
petition is dismissed and the impugned order of the learned appellate Court is
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also hereby affirmed.
16. Pending application, if any, also closed.
17. A copy of this order be sent to the trial Court concerned for
information.
Certified copy, as per rules.

(PREM NARAYAN SINGH)

JUDGE

amit