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2005 DIGILAW 594 (RAJ)

Ramesh v. State of Rajasthan

2005-02-22

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397/401, CrPC, the petitioner, who is the husband of respondent No. 2 and father of respondents No. 3 and 4 has challenged the order dt. 11.08.2004 passed by Judge, Family Court, Judhpur (for short the Family Court hereinafter) on an application filed by respondents No. 2 to 4 under Section 125, CrPC seeking maintenance, whereby the Family Court allowed the maintenance at the rate of Rs. 800/-per month in favour of respondent No. 2, wife of the petitioner and Rs. 400/-each in favour of respondents No. 3 Sunil and No. 4 Aanchal minor son and daughter of the petitioner. Aggrieved by the order, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the order impugned. I have carefully gone through the record of the Family Court. 3. Respondents No. 2 to 4 filed an application under Section 125, CrPC before the Family Court on 112.2001, inter alia, alleging therein that respondent No. 2 was married to petitioner on 11.05.1984 according to Hindu customs and rites, however, "Muklawa" was solemnized on 25.07.1996. It was further averred that out of this wedlock, respondents No. 3 and 4 son and daughter respectively were born. It was alleged that at the time of marriage and "Muklawa", according to the capacity of her parents, dowry was given. However, the petitioner subsequently demanded gold weighing 10 Tolas and a sum of Rs. 50,000/-as dowry and on non-fulfillment of demand, the petitioner used to assault respondent No. 2 and ultimately she was turned out from matrimonial home, whereupon, respondent No. 2 lodged crime report No. 88/2001 at Mahila Police Station, Jodhpur for the offences under Sections 498-A, 323 and 406, IPC against the petitioner. The Additional Civil Judge (Jr. D.) and Judicial Magistrate No. 3, Jodhpur took the cognizance of offences against the petitioner and proceeded with the trial of the case, which is pending. It was also alleged that the petitioner despite having sufficient means failed and neglected to maintain respondents No. 2 to 4. It was averred that the petitioner is having four shops of sale and service of cycles and motor parts situated at Merta Road in the name and style of Samariya Cycle Store and Samariya Motor Parts and as such his monthly income is around Rs. 30,000/-from the business undertaken by him. It was averred that the petitioner is having four shops of sale and service of cycles and motor parts situated at Merta Road in the name and style of Samariya Cycle Store and Samariya Motor Parts and as such his monthly income is around Rs. 30,000/-from the business undertaken by him. Notice of the application under Section 125, CrPC was served on the petitioner and he filed reply to the application denying the allegations levelled against him. During pendency of the application under Section 125, CrPC, an application seeking interim maintenance was also filed by respondents No. 2 to 4 to which the petitioner filed the reply stating therein that it is respondent No. 2 who deserted the petitioner and allegations of cruelty and demand of dowry were denied. It was also averred that two sisters of respondent No. 2 viz. Santosh and Bhagwati have also deserted their husbands and; lastly it was stated that the petitioner is ready to keep and maintain respondents No. 2 to 4. The matter was adjourned on various dates by the Family Court. The petitioner one after another sent applications seeking exemption from his appearance from the Family Court on the ground that he is suffering from high fever and dysentery. On the applications seeking adjournment, the family Court adjourned the case to 10.04.2002, 110.2002, 012.2002, 18.02.2003, 07.04.2003, 23.06.2003, 10.11.2003, 22.01.2004, 10.05.2004 and 11.08.2004. On 11.08.2004, the petitioner again sent an application through post to the Family Court stating in almost all the applications that he is suffering from high fever and dysentery and, therefore, unable to appear. From the applications, it appears that since the year 2001 to 11.08.2004, he suffered high fever and dysentery. Without there being any material and medical certificate on record to show the treatment taken by him for a continuous period of about three years for the one and same alleged disease, the Family Court came to the conclusion that the petitioner has been making efforts to delay the proceedings on the false pretext of his sickness, which otherwise appears to be unbelievable and proceeded to award the interim maintenance in favour of respondents No. 2 to 4 by order impugned dt. 11.08.2004. Before the Family Court, the respondent No. 2 appeared herself as a witness and in support of her claim, she produced affidavits of Durga Shanker, Babu Lal, Munir Khan, Ram Niwas and Jugal Kishore. 11.08.2004. Before the Family Court, the respondent No. 2 appeared herself as a witness and in support of her claim, she produced affidavits of Durga Shanker, Babu Lal, Munir Khan, Ram Niwas and Jugal Kishore. The affidavits filed by these witnesses remained uncontroverted. All these witnesses clearly stated in their affidavits that the petitioner is running shops in the name and style as Samariya Cycle Store and Samariya Motor Parts at Merta Road. He is having as many as four shops and from these shops, his monthly income is about Rs. 30,000/-to 35,000/-. It has also been stated that respondent No. 2 Kaushalya is residing in a rented house and her economic condition is poor. It has also been denied that she is not engaged as a Teacher. The affidavits filed by respondent No. 2 and her witnesses remained uncontroverted. However, considering all the facts and circumstances of the case, the Family Court awarded the interim maintenance at the rate of Rs. 800/-per month in favour of respondent No. 2 Smt. Kaushalya wife of the petitioner and Rs. 400/-each in favour of respondents No. 3 and 4 the minor son and daughter respectively. The amount of maintenance awarded cannot be said to be erroneous. The petitioner was afforded opportunity to contest the case but on each and every date of hearing, instead of appearing before the Family Court and contesting the case, he chose to seek exemption from appearance through post on a ground which is otherwise not believable for the reasons that one would not suffer from high fever and dysentery continuously for a period of three years. The exemption from appearance through post is not bona fide, on the contrary, with a view to prolong the litigation and deny the maintenance to the respondents No. 2 to 4, wife and minor son and daughter, who are otherwise entitled for maintenance. In the circumstances, therefore, I do not find any error or illegality in the order passed by Family Court. 4. Consequently, the revision petition lacks merit and it is hereby dismissed. Stay petition also stands dismissed.