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2003 DIGILAW 206 (MP)

Seema Upadhyaya v. Ajay Upadhyaya

2003-01-30

SUBHASH SAMVATSAR

body2003
JUDGMENT This petition is filed under section 482 CrPC challenging order dated 29.6.002 passed by 9th Additional Sessions Judge, Gwalior in criminal revision No. 285/01 which was preferred by the petitioner-applicant challenging order dated 1.8.2001 passed in MJC Case No. 13/00 were by the Judicial Magistrate Class I rejected the application filed by the present petitioner for grant of maintenance under section 125 CrPC. As per the case of the present applicant, the applicant and respondent married with each other in the year 1995. At the time of marriage, father of the applicant has given ornaments and jewellery and other articles worth Rs. 1,40,000/- as dowry to the respondent. Thereafter, the family members of the respondent started harassing the applicant for the dowry. On 11.12.1997 she was driven out of the house by the respondent and his family members. A report in this regard was lodged with the police. Thereafter, she again returned back to her husband's house but the behaviour of the husband and his family members was not improved and ultimately on 12.12.1999 she permanently left her husband's house. According to the applicant, the respondent is working with R.M.P. doctor and his monthly income is Rs. 8,000/- per month. Applicant has no means of her livelihood and since the respondent was neglecting to maintain her she filed an application under section 125 CrPC claiming maintenance at the rate of Rs. 3,000/- per month. Respondent filed his reply in which he has admitted that the present applicant is his wife. According to him, the wife has left his house after quarrelling with him and inspite of his best efforts she did not return to his home. According to him, he is tuberculosis patient and is unemployed., He is ready to maintain his wife. He further submitted that the applicant has income of Rs. 5,000/- per month from tuitions. Both the Courts below have rejected the said application of the applicant for grant of maintenance mainly on two grounds firstly that the applicant wife could not give the exact date on which she has left her husband's house and secondl y she has not produced the copy of the report lodged by her at the police to prove that the respondent was harassing her for dowry. Both the grounds are not relevant for the decision on an . application uls 125 CrPC. Both the grounds are not relevant for the decision on an . application uls 125 CrPC. Those may be grounds at the time of passing a decree for divorce. The only thing which the Court has expected to decide at the time of passing an order of maintenance is that whether the respondent husband is negligent in maintaining his wife and that whether the wife does not have any income to maintain herself. As regards question of maintenance of wife is concerned, the respondent husband has examined himself as D.W. 1 and has merely stated that he is ready to maintain his wife but she refused to return the home. He has denied the allegations that he has made any dowry demand from his wife or her parents or he has ever beaten his wife. Respondent has also examined his brother Vijay Kumar as D.W. 2. Brother of the . respondent has merely stated that his family members have made efforts to bring the applicant back but she could not come. In his entire statement brother of the respondent has also nowhere stated that the present applicant was not harassed by him or his family members. The statement of DW 1 and his brother DW 2 are nor corroborated by any independent witnesses. Thus, there is no evidence to rebut the allegations made by the applicant who has specifically stated that there was a dowry demand by the husband-respondent. Moreover, normally a wife does not leave her husband's house without any cause. Considering the evidence recorded by the two Courts below I find that the respondent was negligent in maintaining his wife. . . As regards the question whether the applicant wife had any income or not and the question about the income of the respondent both the Courts below have not decided the said issues. In absence of any finding on the two material issues it has become necessary for this Court to set aside the judgments of the two Courts below and direct the trial Court to rehear the arguments on the basis of the evidence already recorded and decide the same. Thus, this petition succeeds and is allowed. In absence of any finding on the two material issues it has become necessary for this Court to set aside the judgments of the two Courts below and direct the trial Court to rehear the arguments on the basis of the evidence already recorded and decide the same. Thus, this petition succeeds and is allowed. Order passed by the two Courts below are set aside as the same are based on irrelevant considerations and it is directed that the trial Court shall give its finding about the income of respondent husband and whether the applicant is unable to maintain herself and then decide the quantum of maintenance to be awarded to the applicant. Parties are directed to appear before the trial Court on 3.3.2003. The trial Court is directed to decide the matter afresh within a period of one month from that date. Office is directed to send the record to the trial Court immediately. With the aforesaid directions, this petition is disposed of.