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2005 DIGILAW 1204 (MP)

Nirmala Bai v. Rameshchandra

2005-11-28

ASHOK KUMAR TIWARI

body2005
Judgment ( 1. ) THIS revision is directed against the order dated 8. 7. 2004 passed by the learned Additional Sessions Judge, Manavar, District Dhar (M. P.) in Criminal Revision No. 66/2003. ( 2. ) THE applicant/wife filed an application under Section 125 of Cr. P. C, praying for award of Rs. 3,000 per month as the maintenance allowance to her. Her application was registered as M. Cr. C. No. 71/1999 in the Court of JMFC, Manavar, District Dhar. Non-applicant opposed the application by filing written statement. The learned JMFC, after recording the evidence adduced by the parties and after hearing the parties, by order dated 9. 4. 2003 allowed the application in part and directed to the non-applicant to pay Rs. 1,000 per month for the maintenance of the applicant. The non-applicant husband preferred a revison against the order of graning maintenance to the applicant. His revision was registered as Criminal Revision No. 66/2003. Applicant has also preferred a revision praying for enhancing the amount of maintenance awarded to her. This revision was registered as Criminal Revision No. 69/2003. Both the revisions were heard by the learned AS J, Manavar, District Dhar and both the revisions were decided by common order dated 8. 7. 2004. By this order the Criminal Revision No. 69/2003 filed by the applicant/wife was rejected while the Criminal Revision No. 66/2003 filed by the non-applicant/husband was allowed and the application of the applicant filed under Section 125 of Cr. P. C. was rejected by the Revisional Court. Hence, she has come up before this Court in revision. ( 3. ) THE learned Revisional Court has erred in disturbing the finding of the Trial Court after re-appreciating the evidence. The re-appreciation of evidence is not permissible by exercising the revisional jurisdiction and the findings of fact shall not be disturbed unless they are perverse. ( 4. ) THE learned Revisional Court has held that the applicant is not entitled to get the maintenance as she is living separate from the non-applicant from the year 1972, while the application of maintenance has been filed in the year 1999. It is true that the application for maintenance shall be filed within a reasonable time irrespective of the fact that no limitation has been prescribed for filing the same. It is true that the application for maintenance shall be filed within a reasonable time irrespective of the fact that no limitation has been prescribed for filing the same. In the present case the applicant has stated in her testimony that her parents and brothers were maintaining her, but now her brothers have refused to maintain. It has been stated in the application that her mother has died about one and half months back and after the death of her mother her brothers are not ready to keep her with them. In such a situation it cannot be said that no explanation for delay has been given. Applicant is the legally wedded wife of the non-applicant. Non-applicant is possessed of sufficient means, hence, he is obliged to maintain the applicant. The order of the learned divisional Court is not legal and proper. The learned Revisional Court has erred in disturbing the finding of the Trial Court which was based on the proper appreciation of the evidence and which was logical and not against the law. Hence, the order of Revisional Court rejecting the application of the applicant cannot be sustained. ( 5. ) THE learned Counsel for the non-applicant has relied on the case of Ratan Lal v. Dhapu Bai 2003 (1) MPJR 125 . In the case of Ratan Lal v. Dhapu Bai (supra) the application was filed after about 40 years, of marriage while the wife was living separately for 15-20 years and the delay in filing the application was not explained. As already discussed above in the present case the delay has been explained, therefore, the non-applicant cannot derive any help from Ratan Lals case. Even in that case, it has been held that Revisional Court should have not disturbed the finding of the fact after re-appreciating the whole evidence. It has also been held in that case that where two views are possible, in revisional jurisdiction the view taken by the Trial Court, which was logical and based on material on record should not be disturbed. In Chandrakala Bai v. Bhagwan Singh, (supra) there was evidence that wife was earning Rs. 20-25 per day and the delay in filing maintenance application was not explained, hence, wife was allowed maintenance allowance. The questions involved in Shiv Kumar Yadav v. Smt. Santoshi Bai, (supra) are not involved in the present case. In Chandrakala Bai v. Bhagwan Singh, (supra) there was evidence that wife was earning Rs. 20-25 per day and the delay in filing maintenance application was not explained, hence, wife was allowed maintenance allowance. The questions involved in Shiv Kumar Yadav v. Smt. Santoshi Bai, (supra) are not involved in the present case. Hence, non-applicant does not get any help from the aforesaid cases. ( 6. ) IN the light of the aforesaid discussions, the revision is allowed. The order of the Revisional Court as far as it relates to Criminal Revision No. 66/2003, rejecting the application of the applicant is set aside and the order of JMFC granting the maintenance to the applicant is restored.