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2010 DIGILAW 166 (UTT)

GANGA DEVI v. STATE OF UTTARANCHAL

2010-04-02

PRAFULLA C.PANT

body2010
JUDGMENT Hon’ble Prafulla C. Pant, J. This revision is directed against the judgment and order dated 09.04.2004, passed by Principal Judge, Family Court, Nainital, in Criminal Misc. Case No. 01 of 2001, whereby said court has dismissed the application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), moved by the revisionist, before said court. 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts of the case are that, the revisionist Ganga Devi got married to respondent No. 2 Kishnanand Kudai on 11.06.1997, in Village Tanda, Tehsil Dhari, District nainital. The revisionist filed an application under Section 125 of Cr.P.C. before the trial court stating that after marriage she discharged her matrimonial obligations with the respondent in his house. It is pleaded by her that she was ousted by her husband and other family members. It is stated in the application that the respondent No. 2 got sent a false notice dated 24.07.1997, through his counsel, making false allegations as to her chastity. It is pleaded by the revisionist before the trial court that in the year 1999, without getting divorce from the revisionist, respondent got married to another woman. It is also pleaded by her that the respondent earns Rs. 5,000/- per month by working as a Technician with Advance Electricals Noida, Ghaziabad, and the revisionist is unable to maintain herself. With these pleadings she claimed maintenance at the rate of Rs. 2,000/- per month. 4. The respondent No. 2 Kishnanand Kudai contested the application under Section 125 of Cr.P.C., before the trial court. He admitted that he got married to the revisionist, who came to her house on 12.06.1997. It is stated by him that the revisionist with respondent only till 27.06.1997 i.e. for about a fortnight only. It is pleaded by respondent No. 2 in his written statement before the trial court that on 24.06.1997, the revisionist complained of pain in abdomen, on which she was taken to nearby hospital. On medical examination, the medical officer detected that the revisionist was pregnant. Thereafter on 27.06.1997, she (revisionist) was taken to Dr. Khurana Ultrasound Scanning Centre, Haldwani, where it was found that the revisionist was carrying six months pregnancy. On medical examination, the medical officer detected that the revisionist was pregnant. Thereafter on 27.06.1997, she (revisionist) was taken to Dr. Khurana Ultrasound Scanning Centre, Haldwani, where it was found that the revisionist was carrying six months pregnancy. On coming to know of it, the respondent No. 2 informed the development to the father of the revisionist, who advised that the pregnancy be terminated, to which the respondent did not agree. Thereafter, according to the respondent No. 2 revisionist was taken to her parental village Tanda by his father. He has denied that the revisionist was ever harassed for non-fulfillment of demand of dowry. It is also pleaded by him that his earnings as alleged by the revisionist is wrong. 5. The trial court after recording the evidence and hearing the parties found that since the revisionist was living in adultery, she is not entitled to maintenance claimed by her from her husband. 6. Learned counsel for the revisionist argued before this Court that the allegations of adultery are false. It is further pointed out that the respondent has got married without getting divorce from the revisionist. Assuming for a moment that the respondent has got married to another woman without dissolution of the first marriage, this can attract prosecution of the respondent No. 2 on the complaint of the revisionist in respect of offence punishable under Section 494 of I.P.C., but it has no effect, in the present circumstances of the case, in the proceedings under Section 125 of Cr.P.C. In a proceeding under Section 125 of Cr.P.C., the court has to see whether the wife claiming maintenance is married to her husband or not, whether such wife is unable to maintain herself, and whether the husband has means to pay and neglected to maintain his wife. Sub-section (4) of Section 125 of Cr.P.C. provides that no wife shall be entitled to receive allowance for maintenance from her husband under the Section if she is living in adultery, or if she lives separately from her husband without any sufficient reason. 7. The respondent No. 2 has taken before the trial court a categorical case that within a fortnight a fetus was detected in the uterus of the revisionist of 25 weeks. 7. The respondent No. 2 has taken before the trial court a categorical case that within a fortnight a fetus was detected in the uterus of the revisionist of 25 weeks. Said fact was proved by the respondent No. 2 not only by making statement on oath, but also from the medical evidence (Paper No. 33-B), which appears to be the report of the Ultrasound Centre. As per the medical report : “UR. BLADDER : Could not be visualized due to 2nd trimester pregnancy. OBSTETRICAL EVALUATION : Single live fetus at 25W4D seen in cephalic orientation. Placenta is anterior and grade I in development. Amniotic fluid is adequate. A.F.I. is 12 cm. Fetal spine, skull and heart are normal. Fetal heart rate is 143/mt. No apparent fetal anomaly seen. IMPRESSION : Sonographic findings suggest : SINGLE LIVE FETUS AT 25W4D IN CEPHALIC PRESENTATION.” 8. Having considered the evidence in the lower court record in which all the medical papers are filed in support of the statement of D.W.1 Kishnanand Kudai, it cannot be said that the trial court has erred in holding that the revisionist was living in adultery. That being so, this Court is not inclined to interfere with the impugned judgment and order passed by the trial court, whereby it is mentioned that the revisionist is not entitled to maintenance. Though the conduct before marriage is not relevant but since pregnancy is carried after the date of marriage as such this Court is not inclined to interfere with the impugned order. 9. For the reasons as discussed above, the revision is dismissed. No order as to costs.