Dinesh Kumar Vs Madhu Devi and another

dated 28.8.2023 passed by Principal Judge (Family Court) Shimla in case No. 90546/2018, titled as Smt. Madhu Devi and Another Vs. Sh. Dinesh Kumar, whereby Family Court has awarded monthly maintenance @ ₹2,000/- per month each to the respondents, payable by the

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petitioner/husband from the date of filing of the petition.

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1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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Respondents filed petition under section 125 of the Code of Criminal Procedure (for short ‘Cr.P.C’) on 1.9.2018. After service, petitioner filed reply to the petition and thereafter evidence of parties was recorded.

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It is admitted fact that respondent No. 1 had also filed a complaint case No. 3-3 of 2011, under Section 12 of Protection of Women from Domestic Violence Act, titled as Smt. Madhu Devi Vs. Sh. Dinesh Kumar and others, before Judicial Magistrate 1^st Class Court No. (5), Shimla, H.P., which was instituted on 31.8.2011 and was decided on 31.10.2013 in favor of respondent No. 1 Madhu Devi, granting protection to respondent No. 1 from petitioner/husband and his family members and prohibiting them to commit any act of domestic violence in future and family of the petitioner was also directed to pay a sum of 3,000/- as₹ maintenance per month to the wife from the date of order.

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It is also undisputed fact that petitioner/husband had preferred a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage, which was dismissed by Additional District Judge (1), Shimla, H.P.

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It is settled law that in Revision Petition, Revisional Court has not to act as an Appellate Court, so as to re-appreciate the evidence in toto, but Revisional Court has to examine the matter to arrive at a conclusion as to whether there is illegality, material irregularity or judicial

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impropriety, calling for interference in the order assailed in the Revision Petition. The evidence on record can be taken into consideration to arrive at a right conclusion, but at the cost of repetition, it is re-iterated that Revisional Court is not an Appellate Court.

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After taking into consideration material on record as well as fact that respondent No. 1 Madhu Devi had been awarded 3,000/- in₹ complaint case under the Protection of Women from Domestic Violence Act, 2005, monthly maintenance of 2,000/- has been added in the₹ maintenance payable to respondent No. 1 and 2,000/- was awarded as₹ monthly maintenance in favour of respondent No. 2.

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Marriage between petitioner and respondent No. 1 was solemnized in the month of February, 2006 and they lived together till 21.8.2007 and were blessed with one son Dheeraj Kumar. The child is living with his mother. It has come on record that child was left with the husband’s family, however, with the help of Police, custody of the child was retained by respondent No. 1 with herself.

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According to learned counsel for the petitioner, Family Court has completely overlooked the pleadings as well as evidence on record and thus impugned order is liable to be quashed.

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It has been submitted that entire case of respondent had shattered and fallen flat during cross-examination of respondent No. 1, because in her cross-examination, it has also come on record that family

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of the petitioner was residing in pakka house consisting of 10 rooms, contrary to deposition of her father that family of her husband i.e., petitioner was having 2 rooms kachha house only and, therefore, plea of respondent No. 1 that husband’s family was pressing her to get constructed house for her husband, is falsified.

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It has been further submitted that Family Court, at the time of awarding maintenance of 2,000/- to respondent No. 1, has failed to₹ appreciate the evidence with respect to income and earning, which does not corroborate with her pleadings and in cross-examination, she has admitted that she was running a ready-made garments shop at Ghanahatti and also stitching the clothes in the said garments shop and has landed property in her name and, therefore, she is having income from the work, which she has completely concealed and did not disclose before the Trial Court. Referring pronouncement of the Supreme Court in

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Rajnish Vs. Neha and another, 2021 (2) SCC, 324 , it has been submitted that petitioner is having no source of income and is earning ₹6,000/- per month and thus is not capable to pay maintenance to his wife and child @ 3,000/- + 2,000/- + 2,000/-, i.e. 7,000/-₹ ₹ ₹ ₹ per month. It has been submitted that respondent No. 1 has left house at her own, which amounts to cruelty against the petitioner and, therefore, she is not entitled for any maintenance. It has been submitted that despite placing on record Income Tax Returns, the income of the petitioner has been

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wrongly considered by the Trial Court. It has been submitted that Trial Court has failed to take into consideration Income Tax Returns filed by the petitioner and further that if maintenance, being paid by the petitioner on the basis of Domestic Violence Act i.e. 3,000/- per month, is added in₹ the maintenance awarded in present proceedings, then it shall be exceeding the total income of petitioner, which is unjust and against the settled principle of law. It has been submitted that Trial court has also failed to consider that when a lady is fighting a matrimonial litigation like petition under the provisions of Domestic Violence Act, under Section 125 Cr.P.C and Divorce Petition etc., burden is on the wife to prove demanding of maintenance from the husband.

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Learned counsel for the petitioner has also referred Income Tax Returns filed by the petitioner indicating that he is not having so much income so as to able to pay maintenance @ 5,000/- per month₹ and 2,000/- per month to his wife and child.₹

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Petitioner/husband has appeared in the witness box as RW1. No other witness was examined by him. Whereas, respondent No. 1 has appeared as PW-1 and she has also examined her father Dhani Ram as PW-2. No documents have been placed on record in accordance with law by the parties, except copies of fee receipts Ex. P-1 to Ex. P-38, placed on record by respondent No. 1 Madhu Devi.

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It is alleged by respondent No. 1 that petitioner/husband had earned more than 75,000/- per month by joining business of his₹ father, driving a Car and from agricultural source. Husband has denied the claim of income as alleged by respondent No. 1, however, he has claimed that respondent No. 1 was earning handsome amount from her ready made garment shop, where she used to stich clothes and she is also owner of land and house and thus is not entitled for maintenance.

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Perusal of impugned order clearly depicts that Family Court has already taken into consideration monthly maintenance payable by the husband to respondent No. 1/wife @ 3,000/- per month and₹ thereafter amount of maintenance payable to respondent No. 1 has been determined as 2,000/- per month and thus from the date of filing₹ application under Section 125 Cr.P.C., i.e. 1.9.2018, respondent No. 1 Madhu Devi is entitled to receive 5,000/- per month as maintenance,₹ whereas respondent No. 2 shall be entitled to receive 2,000/- per month₹ as monthly maintenance.

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As has come on record in the proceedings in Domestic Violence Act, version of respondent No. 1-wife stands proved and on the basis of which direction has been issued to the petitioner and his family members by granting protection order in favour of wife from the family of husband, including husband and prohibiting them to not to commit any domestic violence in future. This order has never been assailed by the

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petitioner, therefore, reasons for leaving the company of husband, i.e. illtreatment by in-laws, stands established from the fact that petitioner and his family have accepted the findings returned by the Judicial Magistrate granting protection from domestic violence to respondent No. 1-wife from the petitioner and his family members.

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The aforesaid order of Judicial Magistrate, in case under Domestic Violence Act, clearly establishes that respondent No. 1 had left the house for act of domestic violence against her by the husband and his family members.

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It is also apt to record that dismissal of petition filed by the husband for dissolution of marriage, was also not challenged by the husband, rather he accepted the verdict which again goes against the husband and, therefore, separate living of wife with child is justified on record.

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Husband as well as wife have also placed on record copies of jamabandies to substantiate their rival claims with respect to income from the agricultural land by alleging that both of them were having land, however, nothing has been placed on record about the yield of any crop traditional or fruit to justify the claim that either husband or respondent No.1-wife was having sufficient income from the agricultural land.

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Though the other documents have not been admitted, however, it has been referred by learned counsel for the petitioner, which

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are Income Tax Returns of petitioner for the Assessment years 2020-21, 2021-22 and 2022-23. In return for the assessment year 2020-21, total income of petitioner was claimed as 1,31,560/-, i.e. about 11,000/- per₹ ₹ month and on subsequent assessment years income has been shown as ₹22,560/- and 28,000/- only. Petitioner has not placed on record₹ Income Tax Returns, pertaining to the previous assessment years. He has placed on record Income Tax Returns filed by him after filing of application by respondents under Section 125 Cr.P.C. on 1.9.2018. Therefore, it can easily be construed that these Income Tax Returns were filed by showing lessor income of the petitioner, in order to avoid liability of maintenance. For accepting verdict of the Judicial Magistrate in Domestic Violence Act and dismissal of divorce petition by Additional District Judge, it can be easily construed that there is sufficient reason for the wife to leave the company of the husband, which stands duly proved in collateral proceeding, which is the main ingredient for claiming maintenance under Section 125 Cr.P.C.

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It is also settled that for not having sufficient income, husband cannot shirk from maintaining his wife and child. In present case, the evidence reflects that husband is hiding some material from the Court. It is also apt to notice that 5,000/- per month is not a sufficient₹ amount to have monthly maintenance to meet the basic needs and necessary amenities required for living and 2,000/- eac₹ h is also meager

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amount payable for monthly maintenance of children, who is residing with mother/respondent No. 1. It is also noticeable that husband has expressed his ignorance that he is in arrears of maintenance of ₹1,70,000/- with his statement that maintenance during period of COVID was not paid, but he has also expressed his inability to produce any document to show that he has paid maintenance in time. He has admitted filing of Execution Petition by respondents to recover maintenance. He was not knowing about the class of his child in which he was studying. He was also unable to tell the name of School of his child with allegation that wife did not allow him to meet the child. However, he again stated that he did not try to meet his child because he was not knowing his School.

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Though, it has been admitted by respondent No. 1 that she was running a ready made garment shop and used to stich dress in the said shop, but it does not indicate sufficient income of the wife to maintain her as well as child being looked after by her. Otherwise also, ₹5,000/- per month to the wife and 2,000/- per month to the child is not₹ a so big amount determined by the Family Court payable by the husband to his wife and child. It is also apt to notice that it is claim of the petitioner that his family is having 10 rooms pakka house in his village. A person having 10 rooms house in pakka building, cannot claim that he is not

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having sufficient income, even to pay 5,000/- to his wife and 2,000/-₹ ₹ per month to his child.

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By taking into consideration entire material on record, we are of the opinion that Family Court has rightly appreciated the material on record and there is no illegality, irregularity or impropriety, warranting interference of this Court by exercising Revisional jurisdiction.

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In the given facts and circumstances, grounds taken for assailing the order, are not sustainable. Accordingly, petition is dismissed alongwith pending application(s), if any.

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(Vivek Singh Thakur), Judge.

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(Ranjan Sharma), Judge.

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14^th July, 2026 (Keshav)

Dinesh Kumar v. Madhu Devi and another

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Dinesh Kumar v. Madhu Devi and another

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