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2005 DIGILAW 2395 (RAJ)

Vimla v. State of Rajasthan

2005-09-08

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 of the code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 110.2004 passed by Additional Sessions Judge, Rajgarh (for short the revisional Court hereinafter) in criminal revision No. 22/2004 whereby the revisional Court set aside the order dated 09.02.2004 passed by Additional Chief Judicial Magistrate, Rajgarh (for short the trial Court hereinafter) in criminal case No. 61/2002 whereby the trial Court allowed the application filed by petitioner under Section 125 of the code and granted maintenance in favour of the petitioner and against respondent No. 2 at the rate of 400/-per month. Aggrieved by the order of revisional Court, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties and carefully gone through the orders passed by the revisional Court as well as by the trial Court. 3. The petitioner appeared as PW. 1 before the trial Court and stated that she married to respondent No. 2 according to Hindu Rites and started living with her husband at her in-laws house, however, her husband and in-laws, being greedy, started demanding dowry i.e. refrigerator and scooter and on account of non-fulfillment of demand of dowry, she was assaulted; a message was conveyed to her father that she used to be assaulted by her in-laws; her father came and took her to parental house, thereafter she had been residing with her parents. A case was lodged against respondent No. 2 and the parents in-law of the petitioner for the offences under Sections 498-A and 406, IPC. She further stated that the police submitted FR on incorrect fact and, therefore, the petitioner has filed a protest petition before the Court of Judicial Magistrate and the matter is still pending. It was also stated that she has no source of income as she is not doing anything whereas respondent No. 2 is undertaking agricultural work on contract as also trading in vegetables. She has stated that a sum of Rs. 3000/-per month is needed for her maintenance. So far as income of respondent No. 2 is concerned, a sum of Rs. 1,00,000/-per year is alleged to have been earned by respondent No. 2 by agricultural work on contract and around Rs. 1,50,000/-per year by trading in vegetables. She has proved the FIR Exhibit P/1 lodged by her. 3000/-per month is needed for her maintenance. So far as income of respondent No. 2 is concerned, a sum of Rs. 1,00,000/-per year is alleged to have been earned by respondent No. 2 by agricultural work on contract and around Rs. 1,50,000/-per year by trading in vegetables. She has proved the FIR Exhibit P/1 lodged by her. In cross-examination, she has stated that her husband filed an application under Section 9 of the Hindu Marriage Act before the District Judge, Hisar. She was called for reconciliation before Lok Adalat at Hisar, wherein she stated that she has been harassed and given beating by her husband and her parents in-laws and, therefore, she is not willing to go with the husband. However, she further stated that if some respectable persons take guarantee that she would not be harassed and given beating then only she is prepared to go with her husband. No person took guarantee for her safety and that is the reason, she did not return to the matrimonial home. 4. From perusal of the statement of the petitioner, it appears that a Panchayat was also held for this purpose. She made similar statement before the Panchayat that she has been harassed on account of non-fulfillment of demand of dowry by her husband and in-laws as also assaulted by them. 5. The revisional Court reversed the Judgment of the trial Court awarding maintenance on the ground that her husband has filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights at Hisar and, therefore, it shows the willingness of husband to keep and maintain the petitioner. 6. So far as Nanu Ram, father of the petitioner is concerned, he has been examined before the trial Court as PW. 2. He has stated that about more than 3 years ago, his daughter Vimla, the present petitioner was married to respondent No. 2 according to Hindu Rites. He has also stated that according to his capacity, reasonable dowry was given, however, stated that respondent No. 2 and his parents are greedy persons and demanding scooter, refrigerator etc. in dowry. 2. He has stated that about more than 3 years ago, his daughter Vimla, the present petitioner was married to respondent No. 2 according to Hindu Rites. He has also stated that according to his capacity, reasonable dowry was given, however, stated that respondent No. 2 and his parents are greedy persons and demanding scooter, refrigerator etc. in dowry. He has stated that being a poor person, he is not in a position to fulfill their demand of dowry and, therefore, his daughter was harassed and given beatings; she was subjected to cruelty by the respondent No. 2 and his parents; he went twice for settlement and requested respondent No. 2 and his parents not to give beatings to the petitioner, however, about 15 months prior to the date of his examination before the trial Court, he went to in-laws house of his daughter and brought her from the clutches of in-laws. He has further stated that Stridhan of the petitioner has not been returned by respondent No. 2 and his parents. So far as income of respondent No. 2 is concerned, he has stated that respondent No. 2 is undertaking the agricultural work on contract and trading in vegetables and earns about Rs. 1,00,000/-and 1,50,000/-respectively per year. Even in cross-examination, his testimony could not be shaken. He further stated that noticing harassment by the in-laws of his daughter, he requested them let his daughter and respondent No. 2 live separately; they started living separately but even then they continued to harass the petitioner. In cross-examination, he has stated that when he asked about the dowry articles, his daughter said that they are lying in a room of the in-laws house. The revisional Court has relied on this part of statement and observed that when the dowry articles are lying in a room of the in-laws house, therefore, there is no misappropriation. In was not before the revisional Court as to whether the petitioner was harassed and subjected to cruelty on account of non-fulfillment of demand of dowry or not and the matter is yet pending adjudication before the Judicial Magistrate, the revisional Court concluded that it has been not established that the petitioner was subjected to harassment and cruelty in connection with the demand of dowry. Obviously this issue was not before the revisional Court for consideration and the matter is still pending before the Judicial Magistrate and it has to be decided as to whether the petitioner was subjected to cruelty and harassment in connection with the demand of dowry as also misappropriated Stridhan and, therefore, finding arrived at by revisional Court in this respect is without jurisdiction and uncalled for. 7. The other witnesses produced by the petitioner viz. AW. 3 Bhura Ram and AW4 Randhir also support the case of the petitioner. AW. 4 Randhir in his cross-examination has admitted that his niece was not assaulted in his presence by the respondent No.2 and his parents but that would not mean that the petitioner was not subjected to cruelty. It is not the case of the petitioner that she was subjected harassment and cruelty or giving beating in presence of AW. 4 Randhir and, therefore, if this witness has stated that petitioner was not subjected harassment and cruelty in his presence, it has no relevance. The respondent No. 2, himself appeared as NAW 1 and stated that he is prepared to keep the petitioner with him for which he has filed an application under Section 9 of the Hindu Marriage Act before District Judge, Hisar. This fact has also not been denied by petitioner herself but the petitioner has shown specific cause for not living with the respondent No. 2 as there is evidence that she was subjected to cruelty and harassment in connection with the demand of dowry. Be that as it may, in my view, the revisional Court fell in error in not considering the material evidence and basing its decision in between lines of statements of some of the witnesses and, therefore, the order of revisional Court is not sustainable and deserves to be set aside. 8. Consequently, the revision petition is allowed. Impugned order passed by revisional Court is set aside and that of trial Court is restored. Stay petition stands disposed of .