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2006 DIGILAW 1152 (RAJ)

Bhona v. Nosar

2006-04-12

SATYA PRAKASH PATHAK

body2006
Judgment S.P. Pathak, J.-This Criminal Misc. Petition filed under Section 482 CrPC is directed against the order dated 26.06.2004 passed by Addl. Sessions Judge No.1, Chittorgarh in Criminal Revision No. 62/2004 -Bhona vs. Smt. Nosar, upholding the order of learned Civil Judge (Jr.Div.) and Judicial Magistrate, Chittorgarh dated 28.02.2004 passed in Criminal Misc. Case No.37/98 -Smt. Nosar vs. Bhona, allowing the application filed by Smt. Nosar under Section 125 and granting maintenance @ Rs.2,000/-per month. 2. Necessary facts, for the disposal of this petition, may be stated like this that non-petitioner Nosar moved an application for maintenance under Section 125 CrPC before the learned trial Court on 22.01.1998 stating inter alia therein that she was married wife of petitioner and they had lived together for 20 years but subsequently as there was no issue out of the wedlock, therefore, the petitioner started harassing her and used to beat and maltreat her, ultimately turned her out therefore, she went to her parents house but the petitioner did not bother to take care of her. It was also stated in the petition that the petitioner is having 40 bighas of land which is irrigated by two tube wells and out of this he has yearly approximate income of Rs. 1 lac. It was also stated in the complaint that infact the earlier wife of petitioner was allowed to live in the house and in the circumstances narrated in the application it had become impossible for her to live with the husband who had turned her out, therefore, the petition for maintenance was moved claiming maintenance of Rs.500/-per month. 3. In reply to the application, it was submitted by the petitioner that the land which he is having is only 10 to 12 bighas. The factum of marriage was denied completely. He asserted that Mst. Pyari is his legally wedded wife and non-petitioner Nosar never lived with him. It was prayed that the petition for grant of maintenance be dismissed. 4. In support of the case, non-petitioner examined herself as AW. 1, Mathara AW. 2, Magjiram AW. 3, Godhan AW.4 and Teju as AW. 5. Petitioner examined himself as NAW.1, Jhamkulal as NAW. 2, Chhogaji NAW. 3, Ekling NAW.4 and Girdhari as NAW. 5. The trial Court, after considering the entire matter and hearing both sides, rejected the application for maintenance moved by non-petitioner on 05.07.2003. On a revision petition filed, the Addl. 2, Magjiram AW. 3, Godhan AW.4 and Teju as AW. 5. Petitioner examined himself as NAW.1, Jhamkulal as NAW. 2, Chhogaji NAW. 3, Ekling NAW.4 and Girdhari as NAW. 5. The trial Court, after considering the entire matter and hearing both sides, rejected the application for maintenance moved by non-petitioner on 05.07.2003. On a revision petition filed, the Addl. District and Sessions Judge No.1 Chittorgarh vide his order dated 211.2003 allowed the revision and set aside the order passed by the learned Magistrate dated 05.07.2003 in Criminal Misc. Application No.37/98 and remanded the matter back. The factum of marriage was considered to be proved by the learned Addl. District and Sessions Judge. The petitioner in the present petition in Para 9 has averred that against the above order a further revision was preferred to the High Court i.e. S.B. Civil Revision Petition No. 82/04 which was dismissed on 23.02.2003 and the learned trial Court thereafter vide order dated 28.02.2004 allowed maintenance to the extent of Rs.2,000/-Feeling aggrieved with the order of the trial Court, a revision petition was preferred before the revisional Court and that was dismissed on 26.06.2004 whereby the order passed by the trial Court was upheld, hence the present petition under Section 482 CrPC has been filed. 5. Heard both the sides. 6. The contention of the learned Counsel for the petitioner is that the trial Court committed illegality while permitting maintenance to the extent of Rs.2,000/-because in the application moved under Section 125 of the CrPC the non-petitioner prayed only for a sum of Rs.500/-per month. According to the learned Counsel this enhancement has been made in an arbitrary manner. It has also been submitted by the Counsel that there was no evidence before the trial Court with regard to the marriage of the non-petitioner with petitioner, therefore, the Courts below have committed serious error and this amounts to abuse of the process and requires to be rectified. .7. On the other hand, it has been contended that in view of amendment made in Section 125 CrPC in the year 2001, enhancement in relation to maintenance could be made. The learned Counsel submits that in view of detailed discussions made by the Court below in relation to the findings arrived at in the matter, no interference is required to be made in the impugned Judgment and order challenged by way of filing the present petition. .8. The learned Counsel submits that in view of detailed discussions made by the Court below in relation to the findings arrived at in the matter, no interference is required to be made in the impugned Judgment and order challenged by way of filing the present petition. .8. I have considered the submissions made before me. .9. In the present case, on the basis of submissions made before me and the material available on record, the following points require consideration. .(1) Whether the petitioner is entitled to maintain her maintenance petition under Section 125 CrPC? .(2) Whether the amount of maintenance as awarded by the trial Court which having been confirmed in the revisional Court requires any interference and if so that upto what extent? 10. Now I propose to examine the points framed by me. Point No. 1 : 11. The case of the non-petitioner is that she was married with petitioner. In the petition, it has been clearly and categorically stated that she was married with the petitioner long back and there was no issue born out of the wedlock and for that reason the petitioner started harassing and maltreating her. It has also been stated in the application moved for maintenance that the petitioner permitted the earlier wife to live in the house and she was thrown out of the house. On the other hand, there is a simple denial of the petitioner in relation to the factum of marriage. The evidence led by both sides is clearly suggestive of the fact that the non-petitioner came in Nata to the petitioner which is permissible in Jat community. Even NAW. 2, who is the Sarpanch, has stated in his statement that his niece Pyari was married to petitioner and in cross-examination admitted that non-petitioner came in Nata to the petitioner. 12. In view of the evidence led by non-petitioner as well as the petitioner, the factum of Nata stands proved. Here it may be noticed that on a previous occasion when the learned revisional Court remanded the case back to the trial Court holding that non-petitioner was the wife of petitioner, the order was challenged upto to the revision petition and that order was upheld as is stated in Para 9 of the petition. 13. Here it may be noticed that on a previous occasion when the learned revisional Court remanded the case back to the trial Court holding that non-petitioner was the wife of petitioner, the order was challenged upto to the revision petition and that order was upheld as is stated in Para 9 of the petition. 13. In view of above, there is no difficulty in reaching to the conclusion that the non-petitioners marriage (Nata) took place with the petitioner and if that is so, then she is entitled to claim maintenance under the provisions of Section 125 CrPC. The answer to point No.1 is accordingly. Point No.2: 14. In the present case, as it appears from the application moved under Section 125 CrPC by the non-petitioner, she had claimed maintenance @ Rs.500/-. In her statement, Non-petitioner AW.1 Nosar has stated that the petitioner is having 40 bighas of land with two tube-wells for irrigation purpose and also has a pucca dwelling house. She has stated the annual income of petitioner Rs.1 lac from the milk business which he is doing and stated requirement of Rs.2,000/-per month for her maintenance but it is significant to note that no cross-examination has been made with regard to her stating on oath requiring maintenance of Rs.2,000/-per month. The cross examination of this witness suggests that infact no marriage took place between the petitioner and non-petitioner. The other witnesses of the non-petitioner stated about the fact of petitioner having land and income worth Rs.1 lac/50 thousand per annum from milk business. As against the above evidence the petitioner has denied any income from milk. Both the sides have filed Some documents. 15. The trial Court as well as the revisional Court both came to the conclusion that the petitioner is having sufficient means to bear the expenses of maintenance and as such ordered maintenance @ Rs.2,000/-per month. The order passed by the trial Court has been confirmed in the revisional Court. The contention of the learned Counsel that infact the petition was not amended and there is no mention of enhancement of maintenance in relation to earlier prayer made by the non-petitioner. The order passed by the trial Court has been confirmed in the revisional Court. The contention of the learned Counsel that infact the petition was not amended and there is no mention of enhancement of maintenance in relation to earlier prayer made by the non-petitioner. It is correct to say that the non-petitioner claimed only Rs.500/-at the initial stage by moving an application for maintenance in the year 1998, however it appears that an amendment was made in Section 125 CrPC w.e.f 01.05.2001, whereby the Magistrate has been authorized to pass order in relation to maintenance taking into consideration the facts and circumstances of each case. Thus, though there is a prayer for lesser amount of maintenance in the application which was moved prior to the amendment brought in Section 125 CrPC but lately after the amendment was made she made her statement before the Court for an enhanced amount of maintenance without seeking amendment in the application and the learned Magistrate passed the order of maintenance @ Rs.2,000 which has been confirmed. The order of the learned trial Court as well as the order by which the revisional Court confirmed the order passed by the Magistrate do not discuss the matter in relation to the amount of maintenance increased to the extent of Rs.2,000/ -per month whereas it was claimed Rs.500/-per month in the application. Be that as it may, it shall now not be proper at this stage to remit the case further on this point to consider the matter after allowing the non-petitioner to make amendment in the application but at the same time taking into consideration the evidence led by the parties, I deem it proper to partly allow the petition in relation to the maintenance awarded by the trial Court. In my humble opinion, the ends of justice would be met if the order of the trial Court whereby maintenance has been allowed @ Rs.2,000/-per month is modified and the amount of maintenance is reduced to Rs.1,000/-per month and to that extent the petition in my considered opinion requires acceptance. 16. In view of above discussion, the answer to Point No.2 is accordingly. 17. 16. In view of above discussion, the answer to Point No.2 is accordingly. 17. In view of my answers to point No.1 and 2, the petition is partly allowed, the order of the trial Court to the extent it allows maintenance to the non-petitioner @ Rs.2,000/- per month is modified and the amount of maintenance is reduced to Rs.1,000/-per month. No orders as to costs.