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2006 DIGILAW 229 (CHH)

SMT. SHASHI DEWANGAN v. NANDLAL DEWANGAN

2006-04-03

DILIP RAOSAHEB DESHMUKH

body2006
DILIP RAOSAHEB DESHMUKH, J. ( 1 ) THIS Criminal Revision under Sub Section-4 of Section-19 of the Family Courts act, 1984 read with Section-397 and Section-401 of the Code of Criminal Procedure, 1973 is directed against the order dated 27-07-2005 passed by the Second additional Principaljudge, Family Court. Durg. C. G. passed in M. J. C. No. 87/2000 whereby an application filed by the applicant herein under Section-125 of the cr. P. C. , was dismissed. ( 2 ) BRIEF facts are that the applicant smt. Shashi Dewangan was married to the non-applicant Nand lal Dewangan on 05-06-1990 and a son named Aayush was born out of the wedlock on 25-03-1991. Aayush had a facial deformity by birth and there was a hole in the heart valve. On this ground, the non-applicant started harassing the applicant herein and discord soon started between them. On 18-06-1992, the applicant left the matrimonial home. The non-applicant did not take back the applicant for three and half years and efforts made by the father of the applicant to arrive at a reunion failed since the non-applicant refused to live with the applicant. Upon a complaint being lodged by the applicant, prosecution was initiated under Section-498-A of the ipc against the non-applicant and his family members. The non-applicant was convicted under Section-498-A of the IPC in Criminal Case No. 24/ 1997 by the Judicial Magistrate First Class, Durg vide judgment dated 03-03-2004. In Criminal appeal No. 104/2004, the learned Sessions Judge, Durg affirmed the conviction of the non-applicant herein under section-498-A of the IPC. It was also informed at the bar that a decree for divorce has also been passed between the parties. ( 3 ) IN the year-2001, the applicant filed an application under Section-125 of cr. P. C. for maintenance of herself registered as M. J. C. No. 73/2002. The Additional Chief Judicial Magistrate, Durg allowed the application and directed the non-applicant herein to pay maintenance @ Rs. 1,500/- per month to the applicant herein from 20-09-2003. The non-applicant preferred a Criminal Revision no. 441/2003 before the learned Special judge and Additional Sessions Judge, durg. By order dated 16-01-2004, the learned Additional Sessions Judge, Durg affirmed the finding of the learned Additional Chief Judicial Magistrate, Durg, that the applicant had sufficient reason for refusal to live with her husband as required under Sub Section-4 of Section-125 of Cr. 441/2003 before the learned Special judge and Additional Sessions Judge, durg. By order dated 16-01-2004, the learned Additional Sessions Judge, Durg affirmed the finding of the learned Additional Chief Judicial Magistrate, Durg, that the applicant had sufficient reason for refusal to live with her husband as required under Sub Section-4 of Section-125 of Cr. P. C. However, it was held that pleadings and evidence of the applicant herein relating to the question whether she was unable to maintain herself were vague. It was also held that specific evidence and findings were necessary on the question whether the applicant herein was unable to maintain herself on the date of the application. On these grounds, order dated 29-12-2003 passed by the Additional Chief Judicial Magistrate, Durg in M. J. C. No. 73/2002 was set aside and the matter was remanded with a clear direction that the trial Court shall, after giving sufficient opportunity to the parties to lead evidence relating to the question whether the applicant herein was unable to maintain herself, decide the application under Section-125 of Cr. P. C. in accordance with law. ( 4 ) UPON establishment of Family court, the proceedings stood transferred to the Family Court and registered as m. J. C. Number-87/2005. Vide order dated 27-07-2005, the learned Second additional Principal Judge, Family court, Durg gave a finding in para-21 that the applicant herein had no means of earning and was unable to maintain herself. It was also held that the applicant had a monthly income of rs. 60,000/- from medical store and agricultural income from 30 acres of land. However, the learned Second Additional Principal Judge, Family Court, burg upon a reappraisal of evidence held that the applicant did not have any sufficient reason to live with the non-applicant herein. On this ground, it dismissed the application filed under section 125 of Cr. P. C. ( 5 ) SHRI P. K. C. Tiwari, learned Senior Counsel for the applicant submitted that the impugned order dated 27. 7. 2005 is wholly without jurisdiction and is perverse since it is obvious from paragraph 2 of the impugned order that the Family court while disposing of the matter was aware that the revisional Court had narrowed the scope of the controversy only to the point of inability of the applicant to maintain herself. 7. 2005 is wholly without jurisdiction and is perverse since it is obvious from paragraph 2 of the impugned order that the Family court while disposing of the matter was aware that the revisional Court had narrowed the scope of the controversy only to the point of inability of the applicant to maintain herself. The revisional Court while remanding the matter to the Additional Chief Judicial Magistrate had clearly mentioned in its order that the trial Court shall after giving the parties an opportunity to lead evidence on the question of inability of the applicant to maintain herself dispose of the application under Section 125 cr. P. C. on merits. The revisional Court had, in paragraph 13 of the order dated 16. 1. 2004 clearly, held that in view of the disputes between the parties, it was proved that the applicant herein had sufficient reason to live separately from the non-applicant herein. In this view of the matter, the Family court -ought to have restricted itself to the question on which the case was remanded by the revisional court. The Family Court held in paragraph 8 that the non-applicant herein had an income of Rs. 60,000/- per annum from Ajay Medical Stores and had agricultural income also from the 30 acres of land. In paragraph 21, the Family Court also held that the applicant was unable to maintain herself. Despite the above mentioned clear findings the Family court dismissed the application only on the ground that the applicant had no sufficient reason to live separately from the non-applicant. The finding recorded by the revisional Court in the order of remand was binding on the Family Court. Therefore, the impugned order is wholly contrary to law, perverse and without jurisdiction. On the other hand, Shri P. Diwakar, learned Senior Counsel argued that the revisional Court having set aside the order dated 20. 9. 2003 whereby the additional Chief Judicial Magistrate had awarded maintenance at the rate of rs. 1500/- per month to the applicant herein, the Family Court was wholly justified in reappraising the evidence on record and coming to a finding that the applicant herein had no sufficient reason to live separately from the non-applicant. ( 6 ) HAVING heard the rival contentions, I am of the considered opinion that this revision deserves to be to be allowed. ( 6 ) HAVING heard the rival contentions, I am of the considered opinion that this revision deserves to be to be allowed. The order passed by the revisional Court in Criminal Revision No. 441/2003 was binding not only on the Additional Chief judicial Magistrate, Durg but also on the 2nd Additional Principal Judge, Family court, Durg after constitution of the Family Courts. The order dated 16. 1. 2004 passed by the revisional Court shows that a clear finding had been recorded that the applicant herein had sufficient reason to live separately from her husband. This is further fortified from the fact that the non-applicant herein was convicted under Section 498-A IP. C. in Criminal Case no. 24/97 vide judgment dated 3. 3. 2004 delivered by the Judicial Magistrate First class, Durg, which was also upheld in criminal Appeal No. 109/2004. The statement made by Shri P. K. C. Tiwari, learned Senior Advocate, during the course of arguments that a decree for divorce has also been passed between the parties was also not controverted. Thus, so far as the finding that the applicant herein had sufficient reason to live separately from her husband, as recorded by the revisional Court, had become final. The Family Court had no jurisdiction to arrive at a different finding on the above issue upon a reappraisal of the evidence. In this view of the matter, the finding recorded by the learned 2nd Additional principal Judge, Family Court, Durg in paragraph 23 of the impugned order dated 27. 7. 2005 is perverse and without jurisdiction. ( 7 ) SO far as the question whether the applicant herein was unable to maintain herself is concerned, the 2nd Additional Principal Judge, Family Court has given a clear finding that the non-applicant herein had an income of Rs. 60,000/- per annum from Ajay Medical Stores and also derived income from 30 acres of agricultural land owned by him. It also recorded a finding that the applicant herein was unable to maintain herself. Therefore, the Family Court ought to have awarded a reasonable amount of maintenance to the applicant. ( 8 ) IN the result this revision is allowed. The finding recorded by the 2nd additional Principal Judge, Family Court, burg that the applicant herein was unable to maintain herself and that the non-applicant had an income of rs. Therefore, the Family Court ought to have awarded a reasonable amount of maintenance to the applicant. ( 8 ) IN the result this revision is allowed. The finding recorded by the 2nd additional Principal Judge, Family Court, burg that the applicant herein was unable to maintain herself and that the non-applicant had an income of rs. 60,000/- per annum from Ajay Medical Stores and also derived agricultural income from 30 acres of land is maintained. However, the finding that the applicant herein had no sufficient reason to live separately from her husband is set aside. It is held that the applicant herein had sufficient reason to live separately from the non-applicant and was entitled to maintenance. Considering the monthly income of the non-applicant and the present cost of living, it is ordered that the non-applicant shall pay a sum of rs. 3,000/- per month to the applicant herein from 20. 09. 2003. Revision allowed. --- *** --- .