Smt. Maya Sharma and another v. Manoj Sharma alias Bhagwan Sharma) before the court of Judicial Magistrate Pharen

Judgment

2. Counter affidavit filed today in court is taken on record. Instant Criminal Revision has been preferred against the judgment and order dated 23.11.2023 passed by Principal Judge, Family Court, Maharajganj in Maintenance Application No. 51 of 2021 under Section 125 Cr.P.C. By the impugned order learned court below has dismissed the application for maintenance filed by the revisionist against her husband opposite party.

3. Heard Sri Vineet Kumar Singh, learned counsel for the revisionists, learned counsel for the respondent No.2 and learned A.G.A. for the State- respondent and perused the material available on record.

4. Learned counsel for the revisionists submitted that revisionist had filed an application under Section 125 Cr.P.C. for maintenance before the Principal Judge, Family Court, Maharajganj together with her minor son Ayush in January, 2021 as her son was at that time about five years of age. The revisionist had stated in the application under Section 125 Cr.P.C. that marriage of the applicant was solemnized with opposite party on 12.06.2010 in accordance with hindu rites and rituals and she was sent off to her

matrimonial home for the first time after three years of marriage on

13.05.2013. She observed her matrimonial obligations while residing at her matrimonial home for some time, and in the meanwhile she gave birth to a son in her parental place, all the expenses of child birth were borne by her father who works in Mumbai as a labourer. She again visited her matrimonial home alongwith her newly born child, but the attitude of her husband and in-laws was very offending towards her. They used to be engaged in marpeet with the applicant and they used to abuse her on account of demand of dowry of Rs.50,000/- and a motorcycle, but she expressed inability of her father to fulfill the demand of dowry. The opposite party and his family members became enraged and again started harassing and torturing her. She suffered this predicament for some time, she was even kept by opposite party starve. She suffered all the maltreatment meted out to her in the hands of her husband and in-laws in expectations that things would turn better in course of time. However, it did not happen so, and she was turned out from her matrimonial home on 05.05.2018 by opposite party and his family members after snatching her entire stridhan and giving her beating. They warned her to come back to their place only after fulfilment of demand of dowry. She went to her parental place and narrated all these things to her father, whereupon her father visited the opposite party alongwith some relatives and tried to plead his position to them, but they insulted them and got them out from their home. The revisionist is presently residing at her parental place, and her parents are maintaining her and her minor son any how. The opposite party is an able bodied skilled person and he takes work contract in Mumbai by which he earns around Rs.50,000/- per month, he also has a agricultural land and a house. Therefore applicant be provided maintenance at the rate of Rs.25,000/- per month.

5. Learned counsel for the revisionist further submitted that learned court below has dismissed the application for maintenance only placing reliance on a stray statement made by the applicant Maya Sharma as PW-1 before the court below, wherein she stated in the cross examination that if her husband is ready to take her in Mumbai and resided there she will live with him. She is not willing to reside in the village, her husband had studied upto class Xth. She has studied up to Class XII in Mumbai.

6. This is nothing but expression of desire of the applicant and she has even offered explanation. In fact, she left her matrimonial home not on account of her desire to live in Mumbai alongwith here husband, but due to cruelty meted out to her by husband and in-laws when she was residing in her matrimonial home. Inasmuch as the revisionist had filed a Complaint 2 Case No.711 of 2019 Smt. Maya Sharma and another Vs. Manoj Sharma alias Bhagwan Sharma) before the court of Judicial Magistrate Pharenda, Maharajganj, in which opposite party and her parents were summoned to face trial for charge under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of DP Act vide order dated 18.12.2019. This summoning order is a prima facie evidence of the fact that revisionist was subjected to matrimonial cruelty on account of demand of dowry by her husband and in-laws and this is itself sufficient to hold that revisionist left her matrimonial home on account of sufficient cause. He further submitted that this is admitted fact that revisionist is maintaining her minor child also while residing at her parental place and even learned court below has not held in the impugned judgment that she is having any independent source of income. Therefore, the impugned judgment is contrary to law and fact, also in view of the fact that while rejecting the prayer of maintenance made by the applicant, the learned court below has even not considered for making the provision for maintenance of the minor son of the applicant.

7. He next submitted that respondent No.2 in her evidence as DW-1 before the court below has stated that he had resided in Mumbai for 7 to 8 years, where he was working as a helper in carpentary work and remuneration of a helper in Mumbai was Rs.300/- in those days. He has also filed a Suit for Vidai (restitution for conjugal rights) before the court prior to filing of maintenance case by his wife. He has also admitted in his evidence that his son was born in the year 2016 at the place of his wife, therefore, it is not unnatural that applicant lived with her husband in Mumbai for many years and for that reason she was willing to reside with her husband in Mumbai as he was settled there. It is quire natural that a wife seeks to live and reside with her husband where he lives, and no adverse interference can be drawn against the wife/applicant on that count.

8. Learned counsel for the respondent No.2 submitted that there is no illegality, irregularity in the impugned judgment and order passed by learned court below. The finding of learned family court is in accordance with the evidence adduced during hearing of maintenance case that applicant was not 3 willing to reside with her husband at his parental home, and she left her matrimonial home without sufficient cause. Respondent No.2 has skipped his job in Mumbai and is now residing at his native place in District Siddhartha Nagar and is still ready to keep his wife at his native place, and he had filed a Suit for restitution of conjugal rights before the family court for their purpose which was decreed exparte infavour of respondent No.2 vide judgment and order dated 05.10.2024 passed by learned Principal Judge, Family Court Siddharth Nagar. However, inspite of passing of said decree, the revisionist is not ready to come to the place of respondent No.2 and reside with him to fulfil her matrimonial obligations. The revisionist was working as a labourer in Mumbai but is residing presently at his native place. He is ready and willing to get alongwith his wife and minor son. Respondent No.2 and his family never made any demand of dowry or tortured the revisionist for demand of dowry.

9. A perusal of record reveals that marriage of the Maya Sharma, the revisionist was solemnized on 12.06.2010 and their gauna was performed on

13.05.2013, that is after around three years. The applicants before the court below has produced PW-1 Maya Sharma, PW-2 Kapil Deo and PW-3 Arun Kumar as witnesses in support of their claim. On the other hand opposite party has produced DW-1 Manoj Sharma (opposite party) and DW-2 Shriniwas Sharma who is his uncle (phoofa) in support of his defence version.

10. Maya Sharma has levelled allegations of matrimonial cruelty, demand of dowry, physical and mental torture and grabbing of her stridhan against respondent No.2, who is her husband and she has stated that on 05.05.2018 she was thrown out from her matrimonial home alongwith her minor son Ayush. In cross-examination she stated that she studied up to Class 12 th in Mumbai, her parents resided in Mumbai, she used to visit Mumbai at the place of her father who was working as a labourer in Mumbai. He also stayed at his native place, when he is out of work, he a has house in Mumbai, she stayed at his matrimonial place around 2 1/2 – 3 years after the marriage. She gave birth to a child after three years of gauna. She visited her 4 matrimonial home after 8-9 months of delivery of child and thereafter he never visited that place. Her expenses are born by her father, she is willing to reside with her husband at any place in Mumbai, but she is not willing to stay with him in village. She is not aware as to whether he is having agricultural land. This is true that that she is resident of Mumbai and she does not like to live in village. PW-2 who is her uncle has supported the version of PW-1 in examination in chief. He has stated that Maya Sharma gave birth two male child in her parental place, but her husband did not come after birth of child.

11. PW-2 Kapil Deo who is uncle of revisionist Maya Sharma. Bhagwan Sharma alias Manoj lives in Mumbai at a place which is far from the place where Maya Sharma resides, Maya is residing in Mumbai for four years at the place of her father. Maya is daughter of Kailash Nath, he works as a private carpenter in Mumbai, no demand of dowry was made between marriage and gauna. Manoj Sharma is also related to him, the son of Maya born at native place. PW-2 has stated that Maya Sharma is willing to go with her husband, but she will be sent off, he is not aware that Maya Sharma works as a Nurse in Mumbai. Maya Sharma lived with Manoj Sharma around two years and their relationship was good and cordial. No altercation took place between Maya and Manoj at his native place Paras Khand, District Maharajganj.

12. PW-3 Arun Kumar in an acquaintance of the applicant, he has stated that he know Kailash Nath, the father of Maya Sharma since 2011. Maya Sharma was ill treated by her husband due to non-fulfillment of demand of dowry and her husband and in-laws even did not take care of Maya Sharma, when a child was born at her parental place.

13. DW-1 Manoj Sharma has stated in his evidence that his wife was not ready to live at her parental place, his wife works in a hospital in Mumbai, his father-in-law is an affluent person and contractor he owns a house in Mumbai, his wife always insisted that she may reside with her husband, if she keep her with him in Mumbai. He resided in Mumbai for 7-8 years, he 5 was a helper in carpenter work and was getting Rs.300/- per day, he has filed a suit for restitution of conjugal rights at Siddhartha Nagar.

14. A conspectus of evidence of parties revealed that the main cause of separate living of revisionist is incompatibility between spouse as her husband was insisting that she stays at his native place; whereas revisionist was insisting the he keep her with him in Mumbai where her father is duly settled and owns a house. She has categorically denied that she will not reside at her shared household of in-laws and she can only live with her husband if he keep her with him in Mumbai. Respondent No.2 has stated in his evidence that he has left the work in Mumbai and now settled at his native place. He is not employed any where.

15. In these facts and situation, the finding of court below that the revisionist has been residing separately from her husband without any sufficient cause and for that reason her claim of maintenance is barred under Section 125 Cr.P. is based on some reasoning and same is not interfered in present revision. However, the learned court below has committed a legal error while refusing maintenance to his minor son born out of wedlock of the spouse.

16. It is moral and legal obligation of husband to maintain his children and claim of minor children to seek maintenance from father is not barred under law. In any eventuality, where both the parents are earning, the responsibility to maintain children may be fixed on shoulders of each of them, but here this fact is not proved that revisionist No.1 Maya Sharma is a working woman or she is earning independently, she has stated that she is dependent on her father for maintenance of herself and her minor son.

17. Therefore in considered opinion of this Court, learned court below has committed a legal error while refusing the claim of maintenance for her minor son, who is entitled to be maintained by his father, who is an able bodied person, even if he is not employed any where, the revisionist has every right to seek maintenance at least for her minor son from her husband. 6

18. As matter is pending since year 2021, therefore, no useful purpose will be served to remand the matter to the court below to pass a maintenance order in respect of revisionist No.2. Therefore, it is directed that respondent No.2 shall pay Rs.3,000/- as maintenance to the applicant No.2 Ayush from the date of filing of application dated 12.01.2021, till attainment of his majority. The revisionist No.1 shall receive maintenance for her minor son Ayush from her husband.

19. The revision stands allowed partly in the manner. Order Date :- 17.1.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad 7

matrimonial home for the first time after three years of marriage on

13.05.2013. She observed her matrimonial obligations while residing at her matrimonial home for some time, and in the meanwhile she gave birth to a son in her parental place, all the expenses of child birth were borne by her father who works in Mumbai as a labourer. She again visited her matrimonial home alongwith her newly born child, but the attitude of her husband and in-laws was very offending towards her. They used to be engaged in marpeet with the applicant and they used to abuse her on account of demand of dowry of Rs.50,000/- and a motorcycle, but she expressed inability of her father to fulfill the demand of dowry. The opposite party and his family members became enraged and again started harassing and torturing her. She suffered this predicament for some time, she was even kept by opposite party starve. She suffered all the maltreatment meted out to her in the hands of her husband and in-laws in expectations that things would turn better in course of time. However, it did not happen so, and she was turned out from her matrimonial home on 05.05.2018 by opposite party and his family members after snatching her entire stridhan and giving her beating. They warned her to come back to their place only after fulfilment of demand of dowry. She went to her parental place and narrated all these things to her father, whereupon her father visited the opposite party alongwith some relatives and tried to plead his position to them, but they insulted them and got them out from their home. The revisionist is presently residing at her parental place, and her parents are maintaining her and her minor son any how. The opposite party is an able bodied skilled person and he takes work contract in Mumbai by which he earns around Rs.50,000/- per month, he also has a agricultural land and a house. Therefore applicant be provided maintenance at the rate of Rs.25,000/- per month.

5. Learned counsel for the revisionist further submitted that learned court below has dismissed the application for maintenance only placing reliance on a stray statement made by the applicant Maya Sharma as PW-1 before the court below, wherein she stated in the cross examination that if her husband is ready to take her in Mumbai and resided there she will live with him. She is not willing to reside in the village, her husband had studied upto class Xth. She has studied up to Class XII in Mumbai.

6. This is nothing but expression of desire of the applicant and she has even offered explanation. In fact, she left her matrimonial home not on account of her desire to live in Mumbai alongwith here husband, but due to cruelty meted out to her by husband and in-laws when she was residing in her matrimonial home. Inasmuch as the revisionist had filed a Complaint 2 Case No.711 of 2019 Smt. Maya Sharma and another Vs. Manoj Sharma alias Bhagwan Sharma) before the court of Judicial Magistrate Pharenda, Maharajganj, in which opposite party and her parents were summoned to face trial for charge under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of DP Act vide order dated 18.12.2019. This summoning order is a prima facie evidence of the fact that revisionist was subjected to matrimonial cruelty on account of demand of dowry by her husband and in-laws and this is itself sufficient to hold that revisionist left her matrimonial home on account of sufficient cause. He further submitted that this is admitted fact that revisionist is maintaining her minor child also while residing at her parental place and even learned court below has not held in the impugned judgment that she is having any independent source of income. Therefore, the impugned judgment is contrary to law and fact, also in view of the fact that while rejecting the prayer of maintenance made by the applicant, the learned court below has even not considered for making the provision for maintenance of the minor son of the applicant.

7. He next submitted that respondent No.2 in her evidence as DW-1 before the court below has stated that he had resided in Mumbai for 7 to 8 years, where he was working as a helper in carpentary work and remuneration of a helper in Mumbai was Rs.300/- in those days. He has also filed a Suit for Vidai (restitution for conjugal rights) before the court prior to filing of maintenance case by his wife. He has also admitted in his evidence that his son was born in the year 2016 at the place of his wife, therefore, it is not unnatural that applicant lived with her husband in Mumbai for many years and for that reason she was willing to reside with her husband in Mumbai as he was settled there. It is quire natural that a wife seeks to live and reside with her husband where he lives, and no adverse interference can be drawn against the wife/applicant on that count.

8. Learned counsel for the respondent No.2 submitted that there is no illegality, irregularity in the impugned judgment and order passed by learned court below. The finding of learned family court is in accordance with the evidence adduced during hearing of maintenance case that applicant was not 3 willing to reside with her husband at his parental home, and she left her matrimonial home without sufficient cause. Respondent No.2 has skipped his job in Mumbai and is now residing at his native place in District Siddhartha Nagar and is still ready to keep his wife at his native place, and he had filed a Suit for restitution of conjugal rights before the family court for their purpose which was decreed exparte infavour of respondent No.2 vide judgment and order dated 05.10.2024 passed by learned Principal Judge, Family Court Siddharth Nagar. However, inspite of passing of said decree, the revisionist is not ready to come to the place of respondent No.2 and reside with him to fulfil her matrimonial obligations. The revisionist was working as a labourer in Mumbai but is residing presently at his native place. He is ready and willing to get alongwith his wife and minor son. Respondent No.2 and his family never made any demand of dowry or tortured the revisionist for demand of dowry.

9. A perusal of record reveals that marriage of the Maya Sharma, the revisionist was solemnized on 12.06.2010 and their gauna was performed on

13.05.2013, that is after around three years. The applicants before the court below has produced PW-1 Maya Sharma, PW-2 Kapil Deo and PW-3 Arun Kumar as witnesses in support of their claim. On the other hand opposite party has produced DW-1 Manoj Sharma (opposite party) and DW-2 Shriniwas Sharma who is his uncle (phoofa) in support of his defence version.

10. Maya Sharma has levelled allegations of matrimonial cruelty, demand of dowry, physical and mental torture and grabbing of her stridhan against respondent No.2, who is her husband and she has stated that on 05.05.2018 she was thrown out from her matrimonial home alongwith her minor son Ayush. In cross-examination she stated that she studied up to Class 12 th in Mumbai, her parents resided in Mumbai, she used to visit Mumbai at the place of her father who was working as a labourer in Mumbai. He also stayed at his native place, when he is out of work, he a has house in Mumbai, she stayed at his matrimonial place around 2 1/2 – 3 years after the marriage. She gave birth to a child after three years of gauna. She visited her 4 matrimonial home after 8-9 months of delivery of child and thereafter he never visited that place. Her expenses are born by her father, she is willing to reside with her husband at any place in Mumbai, but she is not willing to stay with him in village. She is not aware as to whether he is having agricultural land. This is true that that she is resident of Mumbai and she does not like to live in village. PW-2 who is her uncle has supported the version of PW-1 in examination in chief. He has stated that Maya Sharma gave birth two male child in her parental place, but her husband did not come after birth of child.

11. PW-2 Kapil Deo who is uncle of revisionist Maya Sharma. Bhagwan Sharma alias Manoj lives in Mumbai at a place which is far from the place where Maya Sharma resides, Maya is residing in Mumbai for four years at the place of her father. Maya is daughter of Kailash Nath, he works as a private carpenter in Mumbai, no demand of dowry was made between marriage and gauna. Manoj Sharma is also related to him, the son of Maya born at native place. PW-2 has stated that Maya Sharma is willing to go with her husband, but she will be sent off, he is not aware that Maya Sharma works as a Nurse in Mumbai. Maya Sharma lived with Manoj Sharma around two years and their relationship was good and cordial. No altercation took place between Maya and Manoj at his native place Paras Khand, District Maharajganj.

12. PW-3 Arun Kumar in an acquaintance of the applicant, he has stated that he know Kailash Nath, the father of Maya Sharma since 2011. Maya Sharma was ill treated by her husband due to non-fulfillment of demand of dowry and her husband and in-laws even did not take care of Maya Sharma, when a child was born at her parental place.

13. DW-1 Manoj Sharma has stated in his evidence that his wife was not ready to live at her parental place, his wife works in a hospital in Mumbai, his father-in-law is an affluent person and contractor he owns a house in Mumbai, his wife always insisted that she may reside with her husband, if she keep her with him in Mumbai. He resided in Mumbai for 7-8 years, he 5 was a helper in carpenter work and was getting Rs.300/- per day, he has filed a suit for restitution of conjugal rights at Siddhartha Nagar.

14. A conspectus of evidence of parties revealed that the main cause of separate living of revisionist is incompatibility between spouse as her husband was insisting that she stays at his native place; whereas revisionist was insisting the he keep her with him in Mumbai where her father is duly settled and owns a house. She has categorically denied that she will not reside at her shared household of in-laws and she can only live with her husband if he keep her with him in Mumbai. Respondent No.2 has stated in his evidence that he has left the work in Mumbai and now settled at his native place. He is not employed any where.

15. In these facts and situation, the finding of court below that the revisionist has been residing separately from her husband without any sufficient cause and for that reason her claim of maintenance is barred under Section 125 Cr.P. is based on some reasoning and same is not interfered in present revision. However, the learned court below has committed a legal error while refusing maintenance to his minor son born out of wedlock of the spouse.

16. It is moral and legal obligation of husband to maintain his children and claim of minor children to seek maintenance from father is not barred under law. In any eventuality, where both the parents are earning, the responsibility to maintain children may be fixed on shoulders of each of them, but here this fact is not proved that revisionist No.1 Maya Sharma is a working woman or she is earning independently, she has stated that she is dependent on her father for maintenance of herself and her minor son.

17. Therefore in considered opinion of this Court, learned court below has committed a legal error while refusing the claim of maintenance for her minor son, who is entitled to be maintained by his father, who is an able bodied person, even if he is not employed any where, the revisionist has every right to seek maintenance at least for her minor son from her husband. 6

18. As matter is pending since year 2021, therefore, no useful purpose will be served to remand the matter to the court below to pass a maintenance order in respect of revisionist No.2. Therefore, it is directed that respondent No.2 shall pay Rs.3,000/- as maintenance to the applicant No.2 Ayush from the date of filing of application dated 12.01.2021, till attainment of his majority. The revisionist No.1 shall receive maintenance for her minor son Ayush from her husband.

19. The revision stands allowed partly in the manner. Order Date :- 17.1.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad 7