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2010 DIGILAW 325 (MP)

PRASHANT SHRIVASTAVA v. SUSHMA SHRIVASTAVA

2010-03-18

R.C.MISHRA

body2010
Judgment R.C.Mishra, J. ( 1. ) This is a petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code). The petitioner is aggrieved by the order-dated 22.04.2009 passed by Additional Sessions Judge, Lakhnadon in Criminal Revision No.39/2009 affirming the maintenance order passed by Shri Thakur Das, JMFC, Lakhnadon, on 23.12.2008 in MJC No.185/05. As an obvious consequence, the petitioner is liable to pay a total amount of Rs.2500/- per month (Rs. 1500/- for respondent no.1 and Rs. 1000/- for respondent no.2) as maintenance allowance under Section 125 of the Code. ( 2. ) Background facts may be summed up as under - Marriage of respondent no.1 was solemnized with the petitioner on 09.03.1999. In the wedlock, they were blessed with a daughter viz. respondent no.2, who, at the time of filing of application for grant of maintenance, was aged about 4 years. However, the marital relationship could not remain smooth and cordial. Ultimately, on 17.03.2004, the respondent no.1 along with other respondent returned to her parental home at Chhapara. Since then, she has been residing there only. On 09.06.2004, upon a written complaint made the respondent no.1, a case under Section 498A of the IPC and Section 3 read with S.4 of the Dowry Prohibition Act, 1961 was registered against the petitioner and his mother. The petitioner also filed a petition, under Section 9 of the Hindu Marriage Act, 1955, before the Family Court, Jabalpur for restitution of conjugal rights, contending that the respondent no. 1 was refusing to discharge her matrimonial obligations without any reasonable excuse. In the corresponding case, registered as Civil Suit No.282-A/2005, an ex-parte decree was passed on 14.09.2006. Later on, upon an application moved by the respondent no.1 under Rule 13 of Order 9 CPC, the decree was set aside vide order-dated 13.03.2008 passed in MJC No.2/2007. ( 3. ) Assailing legality and propriety of the maintenance order, learned counsel for the petitioner has strenuously contended that while upholding it, learned ASJ completely overlooked the following material aspects of the matter - (i) In the wake of conduct of the respondent no. 1 to live separately without any sufficient cause, the petitioner was constrained to file a petition for restitution of conjugal rights and was also able to obtain an ex-parte decree for the purpose. 1 to live separately without any sufficient cause, the petitioner was constrained to file a petition for restitution of conjugal rights and was also able to obtain an ex-parte decree for the purpose. (ii) His acquittal in the criminal case re-affirmed his plea that he had neither treated the respondent no. 1 with cruelty nor harassed her due to non-satisfaction of any demand for dowry. ( 4. ) To fortify the contentions, reliance has been placed on the under-mentioned precedents - (i) Deb Narayan Haider v. Smt. Anushree Haider AIR 2003 SC 3174 . (ii) Smt. Renu v. Hiralal 2002 CrLJ 2599 (iii) Sunitabai v. Lalu 2004 (4) MPLJ 532 (iv) Balakram v. Smt. Durgabai 2007 (I) MPWN 10 In reply, learned counsel for the respondents has submitted the order of maintenance is well-merited in the light of the evidence on record. ( 5. ) At the outset, it may be observed that custody of the respondent no.2 is immaterial for determining the liability of her father, the petitioner here, to maintain her. ( 6. ) Coming to the question as to accountability of the petitioner as against the respondent no. 1-wife, the decision in Deb Narayan Haiders case (supra) is also of no avail to him in the factual scenario as highlighted above, as in that case, the couple had enjoyed normal marital relationship for a considerable period of 12 years. ( 7. ) In Renus case (above), the revisional order setting aside an interim maintenance order was affirmed inter alia on the ground that an ex-parte decree for restitution of conjugal rights has already been passed against wife and there was no allegation that it was obtained by fraud. However, as pointed out already, in the present case, the decree had already been annulled. The order passed in Renus case also contained reference to the decision of this Court in Babulal v. Sunita 1987 CRI.L. J. 525 wherein it was held that decree for restitution of conjugal rights in favour of the husband would not operate as bar to the maintainability of wifes claim for grant of maintenance under Section 125 of the Code. ( 8. ) However, learned counsel for the petitioner, while inviting attention to the decision in Balakrams case (ibid), has urged that the decree, even though exparte,was sufficient to disentitle the respondent no. ( 8. ) However, learned counsel for the petitioner, while inviting attention to the decision in Balakrams case (ibid), has urged that the decree, even though exparte,was sufficient to disentitle the respondent no. 1 from claiming maintenance but the fact remains that the earlier decision of this Court rendered in Babulals case does not find reference in Balakrams case. In such a situation, as explained by the Full Bench of this Court in Jabalpur Bus Operators Association v. State of MP 2003 (1) MPLJ 513 , the earlier decision by a Bench of equal strength, still holds the field as the binding precedent. ( 9. ) Still, while making reference to the decision of the Apex Court in Mayuram Subramanian Srinivasan v. CBI (2006) 5 SCC 752 , learned counsel for the petitioner has contended that the ratio in Babulals case (supra) should be ignored as having being contrary to the view expressed by co-ordinate Benches of this Court in Sunderlal Puniwala v. Nirmalabai 1962 MPLJ (SN) 258 and Hiraman Singh v. Smt. Urmilabai 1966 MPLJ (SN) 82. However, the contention is apparently misconceived as not only these precedents but also a similar ratio laid down in State of M.P. v. Yeshpal 1964 MPLJ (SN) 131 was referred to by the learned Judge. ( 10. ) Sunitabais case (above) is also distinguishable on facts, as she not only had left the matrimonial home suppressing the factum of her earlier marriage and consequent divorce but had also divorced the second husband by executing a deed in presence of the panch witnesses. ( 11. ) This apart, it is well settled that the prosecution for the offence under Section 498A of the IPC affords a reasonable ground to the wife to live separately (See. Lajja Bai v. Ram Singh (1997) DMC 1. Moreover, as explained in Dalibai v. Rajendra Singh (2006) 1 MPLJ 495 , the acquittal in the criminal case relating to the offences punishable under Section 498A of IPC and Section 3 read with S.4 of Dowry Prohibition Act would not be sufficient to wash out the statement of the respondent no. 1 on oath that she had been treated with cruelty at her matrimonial home. ( 12. 1 on oath that she had been treated with cruelty at her matrimonial home. ( 12. ) Further, the scope of interference, under Section 482 of the Code, with a revisional order is limited in view of the rider placed by sub-Section (3) of Section 397 of the Code. Accordingly, this Court may correct any mistake committed by the revisional Court only where, on examination of the record, it finds that there is grave miscarriage of justice or abuse of the process of the Court or the required statutory procedure has not been complied with or there is failure of justice. (See. Rajathi v. C. Ganesan (1999) 6 SCC 326 ). Accordingly, in view of the concurrent finding as to liability of the husband to pay the maintenance allowance, it is not necessary for this Court to re-examine the whole evidence threadbare under the inherent powers. The corresponding quantum of maintenance can also not be termed as excessive in the light of social background and standard of living of the parties. ( 13. ) For these reasons, none of the contentions raised against legality and propriety of the maintenance order deserves acceptance. As such, no interference with the impugned order is called for. ( 14. ) In the result, the petition stands dismissed. Petition dismissed.