Case Note & Summary
The judgment arises from three connected criminal writ petitions filed by the wife (Aruna Shukla) and the husband (Omprakash Shukla) and his family members, arising out of matrimonial disputes. The wife filed Criminal Writ Petition No. 372 of 2019 challenging the order of the Family Court, Nagpur dated 30.01.2019, which dismissed her application for maintenance under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) for herself and her minor son. The husband and his family members filed Criminal Writ Petition No. 707 of 2018 and Criminal Writ Petition No. 718 of 2018 challenging the order of the Family Court dated 30.01.2019, which dismissed their application for divorce and custody of the child. The parties were married on 08.05.2005 and a son was born on 22.10.2006. The wife alleged cruelty and dowry demands, while the husband alleged that the wife had an adulterous relationship and that the child was not born from the wedlock. The Family Court had dismissed the wife's maintenance application on the ground that she had not proved her income and that the husband had no obligation to maintain her as she was living separately without sufficient reason. The Family Court also dismissed the husband's divorce petition on the ground that cruelty was not proved. The High Court considered the evidence and arguments. The court held that the wife was entitled to maintenance as the husband failed to prove adultery or that the child was not born from the wedlock. The court set aside the Family Court's order and granted maintenance of Rs. 3000 per month to the wife and Rs. 2000 per month to the child from the date of application. The court also allowed the husband's divorce petition on the ground of cruelty, as the wife had filed false criminal complaints and made unfounded allegations. The court ordered a DNA test to determine paternity of the child. The court granted custody of the child to the mother with visitation rights to the father, allowing him to meet the child twice a month and during summer vacations. The court directed that the DNA test be conducted at the Government Medical College and Hospital, Nagpur, and that the husband bear the cost. The court also directed that the husband pay the maintenance arrears within three months.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Denial of Maintenance - Wife and child entitled to maintenance as husband failed to prove wife's adultery or that child was not born from the wedlock - Family Court's order denying maintenance set aside - Held that wife is entitled to maintenance of Rs. 3000 per month and child to Rs. 2000 per month from date of application (Paras 10-15). B) Family Law - Divorce - Cruelty - Husband entitled to divorce on ground of cruelty as wife filed false criminal complaints and made unfounded allegations - Marriage dissolved under Section 13(1)(i-a) of Hindu Marriage Act, 1955 (Paras 16-20). C) Evidence - DNA Test - Paternity - DNA test ordered to determine paternity of child born during wedlock - Husband's application for DNA test allowed as it is in the interest of justice and child's welfare (Paras 21-25). D) Family Law - Custody and Visitation - Minor Child - Custody granted to mother with visitation rights to father - Father entitled to meet child twice a month and during summer vacations - Held that welfare of child is paramount (Paras 26-30).
Issue of Consideration
Whether the Family Court was justified in denying maintenance to the wife and child; whether the husband is entitled to divorce on ground of cruelty; whether DNA test should be ordered to determine paternity; what visitation rights should be granted to the husband.
Final Decision
The High Court allowed the wife's petition (WP 372/2019) setting aside the Family Court order and granting maintenance of Rs. 3000 per month to wife and Rs. 2000 per month to child from date of application. The court allowed the husband's petitions (WP 707/2018 and WP 718/2018) partly: granted divorce on ground of cruelty, ordered DNA test for paternity, granted custody to mother with visitation rights to father (twice a month and summer vacations). Husband to pay maintenance arrears within three months.
Law Points
- Maintenance under Section 125 CrPC
- DNA test for paternity
- visitation rights
- interim maintenance
- divorce on ground of cruelty
- custody of minor child
