Whether Husband is liable to pay Maintenance to Wife and Children even if Wife is Residing in House of Husband?

MADHYA PRADESH HIGH COURT

Before:- S.R. Waghmare, J.
Criminal Revision No. 949 of 2015. D/d. 10.02.2016.

Naresh Sharma - Petitioner
Versus
Jyoti Sharma - Respondent

For the Petitioner :- Ms. Sadhna Pathak and Shri Kailash Sinjonia, learned Counsel.
For the Respondent :- Shri K.K. Kaushal, learned Counsel.

ORDER

Mrs. S.R. Waghmare, J. - 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.

2. 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 L 2,000/- and L 1,000/- to each of the child in total L 5,000/- per month to the wife. Being aggrieved the petitioner has filed an appeal before the 8th Additional District and Sessions Judge, who also dismissed the appeal, upheld the findings of the Judicial Magistrate and hence the present petition.

3. 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 L 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-in-law 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"

4. 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 prayed 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.

5. 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.

6. 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, 2012(1) R.C.R.(Criminal) 834 : 2012(1) R.C.R.(Civil) 972 : 2012(1) Recent Apex Judgments (R.A.J.) 247 : 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 L 10,000/- p.m to respondent towards her maintenance and day to day expenses. Also relying on Prabhakaran v. State of Kerala [2009(2) R.C.R.(Criminal) 936 : 2009(2) R.C.R.(Civil) 883 : 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.

7. Counsel also relied on Anil v. Sudesh [2013(3) R.C.R.(Criminal) 327 : 2013(3) R.C.R.(Civil) 330 : 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 [2010(2) R.C.R.(Criminal) 314 : 2010(2) R.C.R. (Civil) 315 : 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-in-law, 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 re appreciate 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.

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