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2010 DIGILAW 2817 (PNJ)

Raman Narula v. Himani

2010-10-04

S.S.SARON

body2010
Judgment S.S.Saron, J. 1. Heard counsel for the parties. This Revision Petition has been filed against the order dated 17.5.2010 passed by the learned District Judge, Family Courts, Gurgaon, whereby the petitioner has been been directed fo pay a sum of Rs.4000/-to respondent No.1 and Rs.2500/- to respondent No.2- Kumari Sahara (minor daughter of petitioner and respondent No.l) from the date of filing the said petition. 2. The respondent No.l and her minor daughter (respondent No.2) filed a petition under Section 125 of the Code of Criminal Procedure (Cr.P.C. in short) seeking grant of maintenance from the petitioner. It was alleged by them that they have no independent source of income and they are at the mercy of their parents. The petitioner, it is alleged was running a factory in the name of M/s Shanti Coating Pvt. Ltd. and earning Rs.50-60 thousand per month. Despite having sufficient means, he has neglected and refused to maintain the respondents. 3. The petitioner appeared before the learned Family Court and controverted the allegations made in the petition, filed by the respondents. It was submitted that the factory in question was closed long back and he was doing a job and earning Rs.9000/-P.M. The learned Family Court allowed maintenance @ Rs.4000/-P.M. to respondent No.1 and @ Rs.2500/-P.M. to respondent No.2, which is assailed by the petitioner. 4. Learned counsel for the petitioner has contended that a big fraud has been played with the petitioner by respondent No.l inasmuch as she is suffering from Multiple Sclerosis and the fact had been concealed from him before marriage. In this regard, the petitioner had produced on record documents Ex.R 1 (which is now placed on record as Anhexure P-2) and document Ex.R-2 (which is placed on record as Annexure P-3). It is submitted that the said documents have not been considered by the learned Family Court. Therefore, in view of the provisions of Section 125 (4) Cr.P.C, the respondent No.1 is not entitled to any maintenance. It is submitted that Multiple Sclerosis is an incurable disease relating to the nervous system which affects the brain and other parts of the body including sexuality. Therefore, the petitioner is not liable to pay any maintenance to respondent No.1. 5. In response, learned counsel for the respondents has submitted that the present petition is for the grant of maintenance and it is not a petition for divorce. Therefore, the petitioner is not liable to pay any maintenance to respondent No.1. 5. In response, learned counsel for the respondents has submitted that the present petition is for the grant of maintenance and it is not a petition for divorce. It is submitted that the petitioner has filed a petition seeking divorce which is on the ground of desertion and cruelty and he has not filed a petition seeking annulment of the marriage on the ground of alleged fraud. It is submitted that respondent No.1 is not suffering from any disease and even if she is suffering, it is of a minor nature and she can easily be cured. Besides, she has a daughter from the marriage between the parties. 6. I have given my thoughtful consideration to the matter and perused the record. 7. The grievance of the petitioner is that the documents Ex. R-1 and R-2, which are now placed on record as Annexure P-2 and P-3 have not been considered by the learned Family Court. The document Annexure R-1 (which is Annexure P-2 herein) is a medical report from Mahajan Imaging Centre wherein MR Imaging of dorsal spine of respondent No.1 was performed. The opinion, which is given is as follows- "MR findings are suggestive of multiple focal intramedullary demyelination plaques with intervening skip areas involving the cervical and dorsal spinal cord suggestive of multiple sclerosis. Please correlate clinically". Ex.R 2 is placed on record as Annexure P-3, in which the opinion given is as follows "MR findings reveal multiple demyelinating plaques in the supratentorial periventricular white mater corpus calloosum and callososeptal interface suggestive of multiple sclerosis. One of the focal lesion in the right parietal white matter appears relatively acute. Please correlate clinically". 8. During the course of hearing it is not disputed that the said documents were exhibited in evidence on the statement of the petitioner only and none of the doctors who had given their opinions, were summoned or examined. Therefore, the said documents have not been produced and have merely been marked as exhibit. In Sait Tarajee Khimchand and others v. Yelamarti Satyam and others,-1 AIR 1971 SC 1865, it was held by the Honble Supreme Court that mere marking of a document as an exhibit does not dispense with the proof of the document. Therefore, the said documents have not been produced and have merely been marked as exhibit. In Sait Tarajee Khimchand and others v. Yelamarti Satyam and others,-1 AIR 1971 SC 1865, it was held by the Honble Supreme Court that mere marking of a document as an exhibit does not dispense with the proof of the document. The said judgment was reiterated in Narbada Devi Gupta v. Birendra Kumar Jaiswal and another 2 (2003) 8 SCC 745, wherein it was held that mere production and marking of a document as exhibit is not enough and execution of the document has to be proved by admissible evidence. However, where documents produced are admitted by the signatories thereto and then marked as exhibits, no further, burden to lead additional evidence to prove the writing and its execution survives. 9. In the present case, the documents have been marked as exhibit only, on the deposition of the petitioner and the doctors conducting the medical examination of respondent No.1 and who gave their opinions (Annexures P-2 and P-3) have not been summoned or examined. In this manner, the respondent No.l was denied an opportunity of cross examining the doctors who gave their opinions so as to challenge the veracity of the opinions (Annexures P-2 and P-3) given by them. Learned counsel for the petitioner, however, submits that the failure to examine the doctors, who gave their opinions, in any case, is inconsequential as respondent No.1 while appearing as PW 1, in her deposition has accepted as correct that she was unable to walk properly without support. Therefore, the stand of the petitioner in any case stands established. However, it may be noticed that she has stated that it is incorrect that she was a patient of Multiple Sclerosis, which affected her brain and dorsal spine. She has also stated that it is incorrect that she was in habit of taking heavy dose of steroid to live normal life. It is further stated by respondent No. 1 that it is incorrect that she has no control over her stools and urine. She also denied the suggestion as incorrect that she was suffering from this incurable disease much prior to her marriage and she deliberately concealed this fact and had played a fraud upon the petitioner. 10. It is further stated by respondent No. 1 that it is incorrect that she has no control over her stools and urine. She also denied the suggestion as incorrect that she was suffering from this incurable disease much prior to her marriage and she deliberately concealed this fact and had played a fraud upon the petitioner. 10. The contention of the learned counsel for the respondents that the petitioner has not filed a petition for annulment of the marriage on the ground that the respondent No.1 is suffering from any ailment and that fraud has been committed, has not been controverted by the learned counsel for the petitioner. Rather it is the accepted position that the petition for divorce has been filed on the grounds of desertion and cruelty only. Therefore, the provisions of Section 125 (4) Cr.P.C. are not attracted. The said provision envisages that no wife shall be entitled to receive any allowance from the husband, if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband or if, they are living separately by mutual consent. None of the said circumstances are there in the present case. The contention that the petitioner is suffering from Multiple Sclerosis is not established from the material and evidence available on record. The present petition is for the grant of maintenance in terms of Section 125 CrP.C, which is a summary procedure. From the material and evidence submitted on record, it cannot be said that the petitioner has been suffering from a high degree of Multiple Sclerosis. Even if that be so, it is not a ground under Section 125 (4) Cr.P.C. to disentitle the wife for the grant of maintenance. It is not the case of the petitioner that she is living separately by mutual consent. In the circumstances, no ground to interfere wife the order passed by the learned District Judge, Family Court, Gurgaon, is made out. The Criminal Miscellaneous is accordingly dismissed being devoid of merit.