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2010 DIGILAW 2115 (ALL)

Indrajeet Singh v. State of U. P. and others

2010-07-20

KASHI NATH PANDEY

body2010
Kashi Nath Pandey, J. - This re­vision has been filed against the judgement and order dated 9.12.2002, passed by Sri Mahendra Nath Judicial Magistrate 1st District Bhadohi in Case No. 62 of 2001 Smt. Pramila Devi v. Indrajeet Singh. By the impugned order the learned Magistrate allowed the application under section 125, Cr. P.C. and awarded the maintenance to Smt. Pramila Devi, opposite party No. 2 and her minor child at the rate of Rs. 400/-and Rs. 300/- per month respectively for their maintenance from the date of the judgement dated 9.12.2002. The amount of maintenance to the daughter Jaya is to be paid till her marriage. I have heard Sri Sharad Chandra Upadhyay, holding the brief of Sri H.N. Singh, learned Counsel for the revisionist at the stage of admission and have gone through the grounds of revision. The impugned order has been chal­lenged only on the ground of facts. It has not been challenged on account of any er­ror of procedure or substantive law. 2. Learned Counsel for the revision­ist argued that the learned lower Court did not consider the ground of the revisionist on the point of fact that without any proper reason the opposite party No. 2 is living separately whereas the revisionist is ready to maintain her with her minor daughter. There is no substantive evidence in support of the allegations of the opposite party No. 2 that she was thrown out of the house of the revisionist. There is no any evidence on the point of demand of dowry. They have one son Aditya and daughter Jaya. The son is living with him whereas without any proper reason opposite party No. 2 is living separately with her daughter in her father's house since long. On the point of income of the revisionist there is no evidence. He is doing business of tea shop earning a little amount. For his own maintenance he is dependent upon his father. 3. The revisionist has filed a divorce petition under section 13 of the Hindu Marriage Act in which opposite party No. 2 appeared before the Court below and filed her written statement, as such in reaction she has filed the petition under section 125, Cr. P.C. under sub-section 4 of the section 125, Cr. 3. The revisionist has filed a divorce petition under section 13 of the Hindu Marriage Act in which opposite party No. 2 appeared before the Court below and filed her written statement, as such in reaction she has filed the petition under section 125, Cr. P.C. under sub-section 4 of the section 125, Cr. P.C. She is not entitled for any maintenance as without any sufficient rea­son she refused to live with her hus­band/revisionist in spite of best efforts made by the revisionist for keeping her with him. The Court below did not con­sider the statement of the witnesses ad­duced by the revisionist on the point of in­come. The revisionist is ready to maintain his wife/opposite party No. 2 with her daughter Jaya. The Court while exercising the revisional power will not go into the merits of the fact concluded by the learned Trial Court. The Revisional Court can interfere on the point of fact only on the ground of perversity, if the conclusion drawn by the learned lower Court is against the evidence on record, only then on the point of fact the Court of revision can interfere. At the time of argument learned Counsel does not challenge the proceedings on any error of procedure. There is no any error of sub­stantive law. The only ground left for con­sideration is the interference on account of perversity of judgement in none of the grounds of revision. It has been alleged that the conclusion drawn by the learned lower Court is against the evidence on record. There is nothing to hold that the conclusion on the point of fact can be said to be per­verse. I have gone through the impugned judgment and order. The marriage of the revisionist with opposite party No. 2 is admitted. It is also admitted that the minor daughter Jaya is their daughter. 4. According to the petition filed un­der section 125, Cr. P.C. the revisionist and members of his family were not satisfied on account of the non fulfilment of dowry de­mand. They were demanding colour TV, scooter, fridge and Rs. 10,000/- as cash from her parents. They felt ill when she expressed their inability to fulfil the de­mand of dowry. In the result they subjected her to mental and physical torture. They had also snatched her stridhan i.e. clothes, jewellery, Rs. 20,000/- cash. They became more and more aggressive doing inhuman treatment towards her. 10,000/- as cash from her parents. They felt ill when she expressed their inability to fulfil the de­mand of dowry. In the result they subjected her to mental and physical torture. They had also snatched her stridhan i.e. clothes, jewellery, Rs. 20,000/- cash. They became more and more aggressive doing inhuman treatment towards her. They used to beat her and threatened to remarry the revision­ist. She was turned out with her daughter Jaya and compelled her to come to her par­ents house. 5. She has no source of income to maintain herself and her daughter. The re­visionist has proper source of income of about Rs. 20,000/- per month or more. Ac­cordingly she demanded Rs. 5000/- for herself and for her daughter from her hus­band. All the above allegations have been denied by the revisionist/husband stating that he belongs to backward class, edu­cated up to 4th standard and belongs to a poor family. No demand of dowry. He is maintaining his son who is living with him. He is also ready to maintain his daughter and wife. She is habitual of luxurious life that is why she is not living with him. She is under undue influence of her Behnoi, that is why she used to ignore her husband. He went to her parents house for taking her but he was abused by her parents and threatened to remarry her. He was ill treated by her in presence of her Behnoi, therefore, he has filed a suit for divorce in the Family Court at Allahabad. 6. It is the discretion of the Trial Court to believe or disbelieve the version adduced by the parties. It is not the subject of the Revisional Court to substitute its own finding in the finding of the Trial Court, if there is evidence adduced by the applicant which has been believed by the learned Trial Court then it is beyond the scope of the Revisional Court to interfere with the finding of the Trial court. 7. The petitioner has examined her­self as PW1 and in support of her allegation PW2 Gulab Shankar, P.W.3 Rati Lal have been examined. In rebuttal in support of the objection filed by the revisionist he himself has been examined as DW1 and in his support Pankaj as DW2 and Jamuna Das as DW3 have been examined. 7. The petitioner has examined her­self as PW1 and in support of her allegation PW2 Gulab Shankar, P.W.3 Rati Lal have been examined. In rebuttal in support of the objection filed by the revisionist he himself has been examined as DW1 and in his support Pankaj as DW2 and Jamuna Das as DW3 have been examined. She has specifically stated that she had gone to her husband's house and performed her duty as his wife, but they were demanding colour TV, golden chain, Rs. 10,000/- in cash and on her failure of fulfilment of the de­mand of dowry they ill treated her, began to beat her from time to time, snatched her clothes and Jewelleries and cash. They did not provide her proper food, threatened her for second marriage of the revisionist. She was thrown out of her husband's house with her daughter and that is why she was compelled to live with her father. 8. P.W.2 Gulab Shankar her uncle and PW3 Rati Lal her father have sup­ported the above version which has been believed by learned Trial Court reaching to the conclusion that there was sufficient cause for her living separately from her husband. Learned lower Court believed that her husband is not maintaining her and her daughter. The above evidence ad­duced by the husband was disbelieved by the learned Trial Court. Learned Trial Court disbelieved that he is ready to maintain his wife and daughter. According to his own version he himself has filed a suit for divorce making allegations against chastity of the lady with her Behnoi about her illicit relations, is also a type of torture, although her Behnoi visited his house only once and did not stay there even a single night. He does not know the residence of her Behnoi. Thus the allegations of illicit relations have not been believed by the Court below. Learned Trial Court did not believe DW2 who has stated that on the request of Indrajeet he is adducing evi­dence. He has stated the fact as has been told by Indrajeet. He is not related with the family of Indrajeet. He had formal intro­duction with Indrajeet at the betel shop. DW2 has got no personal knowledge re­garding the family affairs of Indrajeet. DW2 has been treated to be a chance witness. He has stated the fact as has been told by Indrajeet. He is not related with the family of Indrajeet. He had formal intro­duction with Indrajeet at the betel shop. DW2 has got no personal knowledge re­garding the family affairs of Indrajeet. DW2 has been treated to be a chance witness. Thus the Court below disbelieved the alle­gations of illicit relations of his wife with her Behnoi on the point of torture. Learned Court below believed the petitioner's ver­sion. She has also been believed on the point of demand of dowry as well as men­tal and physical torture. Learned Trial Court reached to the conclusion that even on the ground of assault on the character of his wife is a sufficient ground for her sepa­rate living, it amounts to mental torture. Learned lower Court has referred ACC 1998 page 887 in support of the above conclusion. On the point of source of income the learned Court below found that the revisionist is able to pay the maintenance amount of Rs. 700/-per month, which is a petty amount, which can be given by the revisionist for mainte­nance of his wife and daughter, whereas the petitioner is not able to maintain herself as well as her daughter. The Court below did not believe DW3 on the point of her doing the business of tea shop. Learned Trial Court treated DW3 as a chance witness, who cannot be believed. Thus the judgement passed by the Trial Court is based on evidence on rec­ord, which can not be said to be perverse from any corner. 8. Considering the above facts the revision is liable to be dismissed at the stage of admission. The revision is dismissed. Impugned judgment and order dated 9.12.2002, in Maintenance Case No. 62 of 2002, Pramila Devi v. Indrajeet Singh is confirmed. Revision Dismissed.