HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 22
Case :- CRIMINAL REVISION No. - 1595 of 2000
Petitioner :- Awadesh Kumari
Respondent :- Rameshwar Prasad
Petitioner Counsel :- C.B. Mishra,N.C.B. Misra,Y,K.Saxena
Respondent Counsel :- Govt. Advocate,Sudama Ji Sandilya,Sudhir Sandilya
Hon'ble Kashi Nath Pandey,J.
1. This revision has been filed against the judgment and order dated 24.5.2000, passed by the Judge Family Court, Jhansi in Case No. 107 of 1997, under section 125 Cr.P.C. By the impugned order the petition for maintenance under section 125 Cr.P.C. has been rejected on the ground that Smt. Awadhesh Kumari, the applicant/revisionist is living separately for the last 6-7 years without any just cause. She had filed complaint under section 498A IPC, which too was dismissed and opposite party, her husband and family members were acquitted. A petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights had been filed by the opposite party, her husband, which was decreed. Even then she did not go to the house of her husband, whereas in the civil proceeding she contested the case. Thus the lower court reached to the conclusion that there was no reason for the applicant/revisionist to live separately from her husband. According to Section 125 (4) Cr.P.C. if the wife is living separately without any sufficient cause she shall not be entitled for any maintenance from her husband.
2. I have heard learned counsel for the applicant/revisionist and the learned counsel for the opposite party and perused the record.
3. Learned counsel for the revisionist argued that sufficient evidence has been adduced to prove that the opposite party, her husband for non fulfillment of dowry demand harassed her and in 1993 expelled her. Due to intervention of some persons, she was again taken to the house of her husband, but again in 1994 he dragged her out after beating her. Till then she is living at her parents house. In 1992 she was married with opposite party Rameshwar according to Hindu custom and performed all her duties like wife and husband. In 1998 on 29th June, the opposite party married with Prabha Devi, daughter of Mathura Prasad and is living with her. It is admitted by her that her complaint case under section 498 A IPC was dismissed by the Judicial Magistrate, resulting acquittal of the accused/opposite party on 30.4.1998. It is also admitted that a suit filed by the opposite party under section 9 of the Hindu Marriage Act was decreed on 20.11.1997, but she stated that it was not executed. She had given a registered notice to the opposite party to accompany her to his house, but he did not come to take her. A divorce suit has also been filed in the court of Teekamgarh, in which 23.7.1999 has been fixed. Thus even from the evidence adduced by the applicant/revisionist there is sufficient ground for the conclusion drawn by the learned lower court,. Therefore, the finding can not be said to be perverse on the point of fact. She could not prove the demand of dowry. She failed to prove the case under section 498A IPC. Even after the decree of the case under section 9 of the Hindu Marriage Act she did not go to the house of her husband. The case of bigamy could have not been proved. It is informed at the time of the argument that a case under section 494 IPC is pending since 2002. Even PW2 Ram Sevak examined in support of the applicant could not prove the second marriage of the opposite party. PW2 belongs to village Bangra, District Jhansi. The opposite party belongs to village Dinau, District Teekamgarh (M.P). Ram Sevak has stated that he was invited by the opposite party in his second marriage, but it has not been made clear that what was his relation with Rameshwar, opposite party. He has stated that he had seen only Jai Mal function. Thereafter he had taken his food and went to Gursarai. From the above statement the marriage could have not been proved. Thus, in the above circumstances there is nothing in the evidence adduced by applicant/revisionist to justify her separate living from her husband. Even if from the evidence an alternative conclusion may be drawn on this ground, the finding recorded by the learned Magistrate can not be said to be perverse. It is not expected from the revisional court to substitute its own finding on the point of fact. If there is substantive evidence in support of the conclusion drawn by the lower court, it is not expected from the revisional court to interfere.
4. Opposite party Rameshwar Prasad admitted the marriage with the applicant in 1992. She came to his house, lived with him for 4-5 days and after 5th day she went to her parents house with her brother Atma Ram and never came back to his house to live with him. For the last seven years she is living at her parents house separately. He went twice to bring her to his house. Thereafter his brother and father approached her, but neither she came to his house, nor her father was ready to send her. Her father told that his daughter will live with him. She had also filed a case under section 498A IPC, in which he was acquitted. His case filed under section 9 Hindu Marriage Act was decreed, even then the applicant refused to come with him. Then he filed a divorce petition against her in the court of Teekamgarh. He had denied the demand of any dowry. He has never expelled his wife. It is wrong to say that he had married Prabha Devi daughter of Mathura. DW2 Nathoo Ram supported his case and stated that even after 2-3 attempts made by Rameshwar his wife did not come with him. The applicant/revisionist refused to live with him. He is unknown with any marriage of Rameshwar with Prabha Devi daughter of Mathura. He does not know that Prabha Devi is living in the house of Rameshwar. Thus, even the opposite party in rebuttal of the evidence of the applicant adduced supporting evidence in favour of the conclusion drawn by the learned lower court. In the above condition the impugned order is within the jurisdiction of the learned lower court, supported with the evidence on record, can not be said to be perverse. Hence no case to interfere in the revision is made out.
5. The counsel for the applicant/revisionist argued that a case under section 494 IPC read with section 109 IPC against her husband, opposite party is still pending. This can be a ground, but on account of it the finding of the learned lower court can not be said to be perverse, because only on account of the pendency of the case, the factum of the second marriage can not be held to be proved.
6. The counsel for the applicant/revisionist has submitted (2008) 9 Supreme Court Cases 632 Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak, but this is on the point of quantum of maintenance, date of entitlement of the maintenance and interim maintenance. This can arise to be considered if the case is decreed under section 125 Cr.P.C. If the case has not been decreed and no ground for the court of revision to interfere the above ruling is of no help for the applicant/revisionist. He has also submitted (2008) 2 Supreme Court Cases 316 Chaturbhuj Vs. Sita Bai. This is also on the point of quantum but even in this case it has been held that u/s 125 Cr.P.C. the case can be decreed only when the husband has neglected or refused to maintain his wife. It has also been held that if the conclusions are based on the evidence and are not perverse, there is no scope for the revisional court to interfere.
7. Considering the above circumstances, I do not find any ground to interfere with the impugned order.
8. Accordingly, the revision is hereby dismissed.
Order Date :- 20.9.2011
Court No. - 22
Case :- CRIMINAL REVISION No. - 1595 of 2000
Petitioner :- Awadesh Kumari
Respondent :- Rameshwar Prasad
Petitioner Counsel :- C.B. Mishra,N.C.B. Misra,Y,K.Saxena
Respondent Counsel :- Govt. Advocate,Sudama Ji Sandilya,Sudhir Sandilya
Hon'ble Kashi Nath Pandey,J.
1. This revision has been filed against the judgment and order dated 24.5.2000, passed by the Judge Family Court, Jhansi in Case No. 107 of 1997, under section 125 Cr.P.C. By the impugned order the petition for maintenance under section 125 Cr.P.C. has been rejected on the ground that Smt. Awadhesh Kumari, the applicant/revisionist is living separately for the last 6-7 years without any just cause. She had filed complaint under section 498A IPC, which too was dismissed and opposite party, her husband and family members were acquitted. A petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights had been filed by the opposite party, her husband, which was decreed. Even then she did not go to the house of her husband, whereas in the civil proceeding she contested the case. Thus the lower court reached to the conclusion that there was no reason for the applicant/revisionist to live separately from her husband. According to Section 125 (4) Cr.P.C. if the wife is living separately without any sufficient cause she shall not be entitled for any maintenance from her husband.
2. I have heard learned counsel for the applicant/revisionist and the learned counsel for the opposite party and perused the record.
3. Learned counsel for the revisionist argued that sufficient evidence has been adduced to prove that the opposite party, her husband for non fulfillment of dowry demand harassed her and in 1993 expelled her. Due to intervention of some persons, she was again taken to the house of her husband, but again in 1994 he dragged her out after beating her. Till then she is living at her parents house. In 1992 she was married with opposite party Rameshwar according to Hindu custom and performed all her duties like wife and husband. In 1998 on 29th June, the opposite party married with Prabha Devi, daughter of Mathura Prasad and is living with her. It is admitted by her that her complaint case under section 498 A IPC was dismissed by the Judicial Magistrate, resulting acquittal of the accused/opposite party on 30.4.1998. It is also admitted that a suit filed by the opposite party under section 9 of the Hindu Marriage Act was decreed on 20.11.1997, but she stated that it was not executed. She had given a registered notice to the opposite party to accompany her to his house, but he did not come to take her. A divorce suit has also been filed in the court of Teekamgarh, in which 23.7.1999 has been fixed. Thus even from the evidence adduced by the applicant/revisionist there is sufficient ground for the conclusion drawn by the learned lower court,. Therefore, the finding can not be said to be perverse on the point of fact. She could not prove the demand of dowry. She failed to prove the case under section 498A IPC. Even after the decree of the case under section 9 of the Hindu Marriage Act she did not go to the house of her husband. The case of bigamy could have not been proved. It is informed at the time of the argument that a case under section 494 IPC is pending since 2002. Even PW2 Ram Sevak examined in support of the applicant could not prove the second marriage of the opposite party. PW2 belongs to village Bangra, District Jhansi. The opposite party belongs to village Dinau, District Teekamgarh (M.P). Ram Sevak has stated that he was invited by the opposite party in his second marriage, but it has not been made clear that what was his relation with Rameshwar, opposite party. He has stated that he had seen only Jai Mal function. Thereafter he had taken his food and went to Gursarai. From the above statement the marriage could have not been proved. Thus, in the above circumstances there is nothing in the evidence adduced by applicant/revisionist to justify her separate living from her husband. Even if from the evidence an alternative conclusion may be drawn on this ground, the finding recorded by the learned Magistrate can not be said to be perverse. It is not expected from the revisional court to substitute its own finding on the point of fact. If there is substantive evidence in support of the conclusion drawn by the lower court, it is not expected from the revisional court to interfere.
4. Opposite party Rameshwar Prasad admitted the marriage with the applicant in 1992. She came to his house, lived with him for 4-5 days and after 5th day she went to her parents house with her brother Atma Ram and never came back to his house to live with him. For the last seven years she is living at her parents house separately. He went twice to bring her to his house. Thereafter his brother and father approached her, but neither she came to his house, nor her father was ready to send her. Her father told that his daughter will live with him. She had also filed a case under section 498A IPC, in which he was acquitted. His case filed under section 9 Hindu Marriage Act was decreed, even then the applicant refused to come with him. Then he filed a divorce petition against her in the court of Teekamgarh. He had denied the demand of any dowry. He has never expelled his wife. It is wrong to say that he had married Prabha Devi daughter of Mathura. DW2 Nathoo Ram supported his case and stated that even after 2-3 attempts made by Rameshwar his wife did not come with him. The applicant/revisionist refused to live with him. He is unknown with any marriage of Rameshwar with Prabha Devi daughter of Mathura. He does not know that Prabha Devi is living in the house of Rameshwar. Thus, even the opposite party in rebuttal of the evidence of the applicant adduced supporting evidence in favour of the conclusion drawn by the learned lower court. In the above condition the impugned order is within the jurisdiction of the learned lower court, supported with the evidence on record, can not be said to be perverse. Hence no case to interfere in the revision is made out.
5. The counsel for the applicant/revisionist argued that a case under section 494 IPC read with section 109 IPC against her husband, opposite party is still pending. This can be a ground, but on account of it the finding of the learned lower court can not be said to be perverse, because only on account of the pendency of the case, the factum of the second marriage can not be held to be proved.
6. The counsel for the applicant/revisionist has submitted (2008) 9 Supreme Court Cases 632 Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak, but this is on the point of quantum of maintenance, date of entitlement of the maintenance and interim maintenance. This can arise to be considered if the case is decreed under section 125 Cr.P.C. If the case has not been decreed and no ground for the court of revision to interfere the above ruling is of no help for the applicant/revisionist. He has also submitted (2008) 2 Supreme Court Cases 316 Chaturbhuj Vs. Sita Bai. This is also on the point of quantum but even in this case it has been held that u/s 125 Cr.P.C. the case can be decreed only when the husband has neglected or refused to maintain his wife. It has also been held that if the conclusions are based on the evidence and are not perverse, there is no scope for the revisional court to interfere.
7. Considering the above circumstances, I do not find any ground to interfere with the impugned order.
8. Accordingly, the revision is hereby dismissed.
Order Date :- 20.9.2011
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