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Rajasthan High Court · body

2007 DIGILAW 1514 (RAJ)

Amina v. Ibrahim

2007-08-09

H.R.PANWAR

body2007
JUDGMENT 1. - This Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. is directed against the order dated 17.1.2006 passed by the Additional Sessions Judge-cum-Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh (for short, "the revisional Court" hereinafter), whereby the revision petition filed by the respondent against the order dated 10.11.2004 passed by the Judicial Magistrate, Pratapgarh (for short "the trial Court" hereinafter) was allowed and the application filed by the petitioner under Section 125 Cr.P.C. was dismissed. 2. I have heard learned counsel for the parties and carefully gone through the order passed by the revisional Court as well as by the trial Court and also gone through the record of the trial Court. The facts and circumstances giving rise to the instant revision petition are that the petitioner filed an application under Section 125 Cr.P.C. against the respondent on 5.8.1999 seeking monthly allowance of maintenance on the ground that she contracted "Nikah" with the petitioner six years ago according to the Muslim Law and from the wedlock and lion of the respondent, she gave a birth to male child. Thereafter, the respondent started raising demand of dowry and used to assault her physically and cause mental harassment. Even, she was not provided adequate meals and ultimately, the respondent demanded a sum of Rs. 35,000/- to be brought from the parents of the petitioner in dowry to which demand petitioner could not ful-fill and ultimately she was turned out from the matrimonial home by assaulting her and since then she has been living with her parents. It has also been averred in the application that she is unable to maintain herself whereas the respondent has sufficient means failed to maintain and neglect her. The respondent did not file reply to the application filed by the petitioner before the trial Court. The petitioner herself appeared as AW-1 and produced the witnesses AW-2 Mohammad, AW-3 Sugra and AW-4 Piru. In rebuttal, the respondent himself appeared as NAW-1, and produced the witnesses NAW-2 Shabbir, NAW-3 Ishaq. The trial Court on appreciation of evidence came to conclusion that the respondent having sufficient means, failed to maintain and neglect the petitioner and accordingly granted the monthly allowance of maintenance @Rs. 500/- per month in favour of the petitioner and Rs. 300/- per month in favour of the minor son Anwar. 3. The trial Court on appreciation of evidence came to conclusion that the respondent having sufficient means, failed to maintain and neglect the petitioner and accordingly granted the monthly allowance of maintenance @Rs. 500/- per month in favour of the petitioner and Rs. 300/- per month in favour of the minor son Anwar. 3. That order came to be challenged by the respondent before the revisional Court, and the revisional Court set aside the order of trial Court, hence this revision petition. 4. It is contended by the learned counsel for the petitioner that it has not been disputed by the respondent that the petitioner is his legally wedded wife as "Nikah" contracted between the parties has not been disputed and therefore, the respondent is under legal obligation to maintain his wife and minor son. 5. It is further contended that the revisional Court reversed the order of trial Court without assigning the cogent and sufficient reasons. Learned counsel has relied on a decision of this Court (Jaipur Bench) in Gyarsi (Smt.) & Anr. v. Ramkaran, 2004(2) Cr.L.R. (Raj.) 1090 . 6. Learned counsel appearing for the respondent submits that the case was instituted by the petitioner against the respondent for the offence under Section 498-A in which the respondent was acquitted and therefore, it cannot be said that the respondent caused any harassment to the petitioner in connection with demand of dowry and ultimately she was turned out from the matrimonial home after beating by the respondent. 7. It is further contended that the petitioner herself has deserted the respondent. So far as causing injuries to the petitioner by respondent has not been proved and therefore, revisional Court was justified in reversing the order of the trial Court. 8. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. Learned counsel for the respondent has relied on decision of Hon'ble Supreme Court in Chouhan Sikandar Khan v. State of Gujarat & Anr., 2004 AIR SCW 7456 . 9. As per the statement of the petitioner and as also from the statement of AW-2 Mohhamad, AW-3 Sugra and AW-4 Piru, it has established that she was married to the respondent and from the wedlock a male child Anwar was bom. 9. As per the statement of the petitioner and as also from the statement of AW-2 Mohhamad, AW-3 Sugra and AW-4 Piru, it has established that she was married to the respondent and from the wedlock a male child Anwar was bom. The respondent initially for the period of six years well maintained the petitioner and thereafter, started neglecting her and causing harassment by assaulting her and raised demand of money to be brought from her parents. She was threatened that in case, she does not get the money from her parents she will be turned out from the matrimonial home and at one point of time, she was go to her Aunty's house. Thereafter, the respondent assaulted her by which she suffered injuries. However, she did not lodge the case in Court with the hope to settle the matter. It appears that the respondent is having agricultural land in Pratapgarh. It is also stated that the agriculture land is in Opium growing area and there from the respondent, cultivate opium, wheat and Dal (Chana) etc. It is also stated that annual income of the respondent is about Rs. Two lacs. It is categorically denied by the petitioner that she at her own left the house of respondent. On the contrary, stated that she was forced to leave the house and she was turned out from the matrimonial home by the respondent. AW-3 Shugra also made statement similar to that of the petitioner that the respondent used to assault the petitioner by shoes and chappals and as also demanding a sum of Rs. 40,000/- to do brought from her parents else she would be turned out from the matrimonial home and ultimately she was turned out from the matrimonial home. The injuries of the petitioner was medically examined but she did not lodge the criminal case against the respondent. The respondent himself appeared as NAW-1 and admitted the fact of his marriage with the petitioner and the birth of minor son Anwar. However, stated that the petitioner instituted a case against him in a criminal Court and in which he was acquitted. The respondent also came with a case that he is a labourer and earns Rs. 30/- per day. The other witnesses produced by him NAW-2 Shabbir is only the hearsay witness as he stated that he has not heard or seen the respondent beating to the petitioner. The respondent also came with a case that he is a labourer and earns Rs. 30/- per day. The other witnesses produced by him NAW-2 Shabbir is only the hearsay witness as he stated that he has not heard or seen the respondent beating to the petitioner. The NAW-3 Ishaq stated that the respondent used to well maintain the Petitioner and he has never heard that the respondent giving beating to her in connection with demand of dowry. He further stated that the respondent is a labourer and used to have the seasonal work in the village. 10. From the material available on record, in my view, the petitioner has proved the case against the respondent that the respondent having sufficient means, failed to maintain and neglected her. Merely because the respondent has been acquitted in a criminal case instituted by the petitioner for the offence under Section 498-A I.P.C., it cannot be a conclusion that the respondent has not harassed the petitioner or has not subjected her to cruelty or has not assaulted her and has been maintaining the petitioner. On the contrary, from the evidence available on record of this case, it has been established that the respondent used to give beating and raised the demand for the amount to be brought from the petitioner's parents and on non-fulfillment of the demand, she was ultimately turned out from the matrimonial home and as such neglected and failed to maintain her and minor son. 11. In view of the evidence on record noticed above, in my view, the petitioner and her minor son Anwar are entitled for the monthly allowance of maintenance as granted by the trial Court and, therefore, the order impugned passed by the revisional Court cannot sustain and is liable to be set aside. 12. In the result, the revision petition is allowed and the Order impugned dated 17.1.2006 is set aside and that of the order dated 10.11.2004 passed by the trial Court is restored.Revision petition allowed. *******