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2010 DIGILAW 974 (MP)

Santosh Tomar v. Rajesh Singh Tomar

2010-09-23

INDRANI DATTA

body2010
ORDER 1. Applicant has preferred this revision under section 397 read with section 401 CrPC for setting aside the order dated 16.2.2008 passed by Principal Judge, Family Court, Gwalior in Case No. 225/06, by which the application filed by the applicant for grant of maintenance under section 125 CrPC has been rejected. 2. The facts in nutshell are that the applicant has filed one application under section 125 CrPC in the Court of Principal Judge, Family Court, Gwalior on the ground that she is married with respondent Rajesh Singh Tomar. Respondent and his family members used to harass and torture her with respect to demand of dowry. They also attempted to kill her. On 10.1.2004, they kicked her out from her matrimonial house and since then, she is residing in her parental house. She has no independent source of income and there is no arrangement for her livelihood and she is unable to maintain herself. Respondent is having sufficient source of income, though he is not maintaining her. He is having source of income from agriculture and is also driving tractor, hence Rs. 4,000/- maintenance is to be awarded to her. That application has been rejected by Principal Judge, Family. 3. It is contended by learned counsel for the applicant that applicant has proved that she has been ill-treated due to demand of dowry and she was kicked out from matrimonial home and is dependent upon her father. The learned trial Court has not considered the evidence. It is further submitted that in compelled circumstances applicant is residing separately and case under section 498-A is also registered. The learned trial Court has wrongly come to the conclusion that she is living in adultery, hence order of trial Court is illegal, improper and deserves to be set aside. 4. The learned counsel for the respondent supported the impugned order of learned trial Court and submitted that under section 125 (4) CrPC the learned trial Court has rightly observed that since the applicant is living in adultery, she is not entitled to receive any maintenance from the respondent. The order of trial Court is correct and requires no interference and the revision petition deserves to be rejected. 5. Heard rival contentions of parties and perused the record. 6. The applicant has examined herself and two witnesses, namely Dhanpal and Manish Singh Tomar. The order of trial Court is correct and requires no interference and the revision petition deserves to be rejected. 5. Heard rival contentions of parties and perused the record. 6. The applicant has examined herself and two witnesses, namely Dhanpal and Manish Singh Tomar. The applicant has deposed that after marriage respondent and her in-laws used to harass her with respect of demand of dowry. She has been kicked out from matrimonial house by respondent and thereafter she is dependent of her father and there is no independent source of income. She has further stated that respondent is having earning from agriculture. Detailed cross-examination has been conducted by respondent. In cross-examination para 7 some questions were put up to her concerning alleged adultery and she has only stated that she is well acquainted with Jabar Singh and Jabar Singh is her brother's friend, who sometimes comes with her in the Court. It cannot be assumed from her cross-examination that she is having illicit relation with Jabar Singh. From the statement of applicant's witness Dhanpal and Manish Singh Tomar it is not proved that applicant is living with Jabar Singh Gurjar. 7. Respondent Rajesh Singh has examined himself in the Court and in para 2 of his statement he has stated that applicant is residing with Jabar Singh Gurjar. His statement is not supported by any witness. Mahendra Singh, who is non-applicant's witness has not stated anything about the illicit relation of applicant with Jabar Singh. 8. When the allegations are levelled by husband that wife is living in adultery then this matter necessarily is to be proved by husband and adultery must be proved by cogent and reliable evidence. Mere friendship with a man does not amount to living in adultery. From the perusal of evidence and material available on record, I am of the opinion that trial Court is erred in coming to a conclusion that applicant is living in adultery. 9. In the reply of main application, respondent denied the averments of application filed by applicant under section 125 CrPC, but it is not averred that applicant is living in adultery. As per reply the applicant is living separately since 1998. One notice was issued to her in the year 2004. Copy of the notice is Ex.P.2. In that notice no specific allegation of adultery has been levelled by respondent against the applicant. As per reply the applicant is living separately since 1998. One notice was issued to her in the year 2004. Copy of the notice is Ex.P.2. In that notice no specific allegation of adultery has been levelled by respondent against the applicant. It is not mentioned in the notice that applicant is living with labar Singh and having illicit relations with him. In the statement of respondent recorded in the Court on 5.2.2008 he has stated that the applicant is living with labar Singh since four years. Then the question arises that why this fact is not mentioned in the notice sent to her in the year 2004. 10. Considering the above facts and circumstances of the case, as no reliable and cogent evidence have been produced by the respondent concerning the alleged adultery of applicant, the order passed by learned Principal Judge, Family Court dated 16.2.2008 deserves to be set aside. Matter is remanded back to that Court to decide afresh after giving reasonable opportunities to the parties for leading evidence. Parties are directed to appear before trial Court on 12.10.2010. Accordingly, the revision petition stands disposed of. Copy to trial Court for compliance.