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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2310 OF 2014 (Arising out of SLP (Crl.) No. 2659/2012)

Sunita Kachwaha & Ors.                          ..Appellants   

Versus

Anil Kachwaha                     ..Respondent

J U D G M E N T

R. BANUMATHI, J.

Delay in filing and refiling SLP condoned and leave  

granted.

2. This  appeal  is  preferred  against  the  Order  dated  

26.06.2008 passed by the High Court of Madhya Pradesh at  

Jabalpur  in  Criminal  Revision  No.2303/2007,  in  and  by  

which, the High Court has set aside the order of maintenance

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of Rs.3,000/- awarded to the wife while affirming the order of  

maintenance awarded to the two daughters.

3. Marriage of the first appellant was solemnized with  

respondent on 5.02.1996 as per Hindu rites and the spouses  

are blessed with two daughters. The first daughter Ankita is  

aged 12 years and second daughter Akshita is 8 years old as  

on the date of filing of SLP.  Case of the appellant-wife is that  

when she was living in the matrimonial house, the respondent  

and her in-laws were harassing her on the ground that she  

has not brought sufficient dowry.  The appellant-wife is alleged  

to  have  been  subjected  to  physical  and  mental  cruelty,  

demanding car and dowry.  As the torture became intolerable,  

the  appellant-wife  had  contacted  her  brothers  in  the  year  

2006, and her brothers came to Kota to take the appellants  

back  on  24.04.2006.  The  matter  was  reported  to  the  SHO  

Police  Station,  Mahaveer  Nagar,  Kota  about  the  cruel  

treatment meted out to the appellant-wife by the respondent  

and in-laws.

4. Because  of  the  harassment,  it  is  stated  that  the  

appellant-wife could not continue to reside in the matrimonial  

house, and the appellant-wife along with her children went to  

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her  parents  house  at  Jabalpur.  The  appellants  claimed  

maintenance  by  filing  petition  under  Section  125  Cr.P.C.  

before the Second Additional  Principal  Judge, Family Court,  

Jabalpur.   Keeping  in  view the  need  of  the  appellants,  the  

Family  Court  by  its  Order  dated  29.10.2007  directed  the  

respondent to pay Rs.3,000/- per month and Rs.2,500/- per  

month  to  the  appellant-wife  and  to  each  of  the  daughters  

respectively.

5. Aggrieved by the award of maintenance, respondent  

preferred revision petition  under  Section 397 Cr.P.C.  before  

the High Court of Madhya Pradesh, Jabalpur Bench wherein  

the  High  Court  has  modified  the  order,  disallowing  the  

maintenance to the appellant-wife and affirming the award of  

maintenance to the daughters.  Aggrieved by the said order,  

the unsuccessful  wife has preferred this appeal,  praying for  

setting  aside  the  order  of  High  Court  and  for  appropriate  

maintenance.  

6. We  have  heard  the  learned  counsel  for  the  

appearing  parties  at  length  and  perused  the  materials  on  

record.

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7. The  High  Court  has  set  aside  the  award  of  

maintenance to the wife on the ground that the separate stay  

of  the wife due to alleged dowry torture is not justified and  

that she has left the matrimonial house without any justifiable  

ground.  As referred to by the Family Court, in her evidence,  

the appellant-wife has clearly stated that the respondent and  

his mother were physically and mentally harassing her on the  

ground that she has brought insufficient dowry.  The Family  

Court referred to the evidence of the appellant at length and  

held  that  she has justifiable  ground to  stay away from the  

matrimonial  house  and  the  High  Court  was  not  right  in  

interfering  with  such  factual  findings  and  upsetting  the  

maintenance order.

8. The  proceeding  under  Section  125  Cr.P.C.  is  

summary  in  nature.  In  a  proceeding  under  Section  125  

Cr.P.C., it is not necessary for the court to ascertain as to who  

was  in  wrong  and  the  minute  details  of  the  matrimonial  

dispute between the husband and wife need not be gone into.  

While  so,  the  High  Court  was  not  right  in  going  into  the  

intricacies  of  dispute  between  the  appellant-wife  and  the  

respondent and observing that the appellant-wife on her own  

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left the matrimonial house and therefore she was not entitled  

to  maintenance.   Such  observation  by  the  High  Court  

overlooks  the  evidence  of  appellant-wife  and  the  factual  

findings, as recorded by the Family Court.

9. Inability to maintain herself is the pre-condition for  

grant of  maintenance to the wife.   The wife must positively  

aver  and  prove  that  she  is  unable  to  maintain  herself,  in  

addition to the fact that her husband has sufficient means to  

maintain her and that he has neglected to maintain her.  In  

her evidence, the appellant-wife has stated that only due to  

help  of  her  retired  parents  and  brothers,  she  is  able  to  

maintain herself  and her daughters.   Where the wife states  

that she has great hardships in maintaining herself and the  

daughters,  while  her husband’s  economic condition is  quite  

good, the wife would be entitled to maintenance.   

10. The learned counsel for the respondent submitted  

that the appellant-wife is well qualified, having post graduate  

degree in Geography and working as a teacher  in Jabalpur  

and also working in Health Department.  Therefore,  she has  

income  of  her  own  and  needs  no  financial  support  from  

respondent.  In  our  considered  view,  merely  because  the  

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appellant-wife  is  a  qualified  post  graduate,  it  would  not  be  

sufficient to hold that she is in a position to maintain herself.  

Insofar as her employment as a teacher in Jabalpur, nothing  

was placed on record before the Family Court or in the High  

Court  to  prove  her  employment  and  her  earnings.  In  any  

event,  merely  because  the  wife  was  earning  something,  it  

would not be a ground to reject her claim for maintenance.  

The Family Court had in extenso referred to the respondent’s  

salary and his economic condition.  The respondent is stated  

to be an Engineer in PHE, Kota.  He is in Government service  

and according to the pay certificate then produced before the  

Family Court, he was getting salary of Rs.20,268/- per month.  

In  her  evidence,  appellant-wife  has  also  stated  that  the  

respondent owns a very big house of his own in which he is  

said to have opened a hostel for boys and girls and is earning  

a substantial income.  She has also stated that the respondent  

owns another house at Talmandi Sabji Kota, Rajasthan and is  

receiving  rental  income  of  Rs.4,500/-  per  month.  Having  

regard to the salary and economic condition of the respondent,  

the Family Court has awarded maintenance of Rs.3,000/- to  

the  wife  and  Rs.2,500/-  to  each  of  the  daughters,  in  total  

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Rs.8,000/-  per  month.  It  is  stated  that  the  maintenance  

amount  awarded  to  the  daughters  has  been  subsequently  

enhanced  to  Rs.10,000/-  per  month. The  maintenance  

amount of Rs.3,000/- per month awarded to the wife appears  

to be minimal and in our view, the High Court ought not to  

have set aside the award of maintenance.  The learned counsel  

for the appellants prayed for enhancement of the quantum of  

maintenance to the appellant-wife.  We are not inclined to go  

into  the  said  submission,  but  liberty  is  reserved  to  the  

appellant-wife to seek remedy before the appropriate court.

11. The  impugned  order  of  the  High  Court  dated  

26.06.2008 passed in Criminal Revision No. 2303/2007 is set  

aside and this appeal is allowed.  The respondent is directed to  

pay  the  maintenance  of  Rs.3,000/-  per  month  to  the  

appellant-wife as ordered by the Family Court and also pay the  

arrears of  maintenance payable to the appellant-wife within  

the period of eight weeks.

………………………..J. (T.S. Thakur)

………………………..J. (R. Banumathi)

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New Delhi; October 28, 2014

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