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2012 DIGILAW 305 (UTT)

GYANWATI v. JUDGE FAMILY COURT

2012-06-21

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. This Court has rendered hearing to learned counsel for the revisionist while none has turned up on behalf of respondent no. 2 even in the revised call after lunch. Notice upon respondent no. 2 has been served sufficiently and name of his counsel appears on the list. 2. The facts of the case are that revisionist no. 1 Gyanwati was wedded with respondent no. 2 Ayodhya Prasad on 21.04.1995, as per Hindu Rites & Customs. After marriage, she came to reside in her matrimonial house but unfortunately the relations between the couple could not remain cordial and she was subjected to sundry atrocities on account of dowry demand. Ultimately, she was constrained to leave the matrimonial house and she came to reside with her parents at Sitarganj, District Udham Singh Nagar. She instituted a Misc. Case No. 65 of 2002 under Section 125 Cr.P.C. seeking maintenance for her and her minor son master Kamal Kishore. Parallel litigation under Section 9 of the Hindu Marriage Act was also instituted by Ayodhya Prasad against Gyanwati for restoration of conjugal rights. Both the cases were adjudicated by Judge, Family Court, District Udham Singh Nagar on dated 01.10.2003 whereby suit no. 90 of 2002 filed by Ayodhya Prasad was decreed against Gyanwati and she was directed to live with her husband, simultaneously, learned Judge dismissed the petition of Gyanwati under Section 125 Cr.P.C. merely on the ground that in her evidence adduced before the Court, she expressed her unwillingness to accompany her husband, even if, Ayodhya Prasad wanted to resume his married life with her. 3. It has been argued on behalf of the revisionist that four days after the said direction, Gyanwati went to her matrimonial house with her son on dated 05.10.2003 but her husband and parents-in-law declined to accept her entry in the house and evicted her again at 04.30 p.m. from their abode. In these circumstances, she again filed Misc. Case No. 198 of 2006 under Section 125 Cr.P.C. seeking maintenance for herself and her son. In that case also, Ayodhya Prasad filed his objections/written statement (paper no. 14 C) and resisted the petition. The learned Judge rejected Misc. Case No. 198 of 2006 mainly on the ground that her previous petition no. In these circumstances, she again filed Misc. Case No. 198 of 2006 under Section 125 Cr.P.C. seeking maintenance for herself and her son. In that case also, Ayodhya Prasad filed his objections/written statement (paper no. 14 C) and resisted the petition. The learned Judge rejected Misc. Case No. 198 of 2006 mainly on the ground that her previous petition no. 65 of 2002 for the same relief was dismissed by the court on merits, so she is not entitled to launch same proceedings second time against her husband Ayodhya Prasad. 4. From the perusal of the record, it appears that Judge, Family Court did not allow either of parties to lead their evidence and there were only affidavits available on record filed by both the parties. Gyanwati filed her affidavit (paper no. 16C) in support of averments stated by her in petition and the same had been rebutted by Ayodhya Prasad by filing his affidavit (paper no. 27C). In the affidavit filed by Ayodhya Prasad there was no categorical denial that Gyanwati did not come to his house in village Rainvada, District Bareilly along with her child to resume cohabitation with him. It reflects that averments so stated by Gyanwati are prime facie believable and she had followed the direction of court below but unfortunately she was not accepted in her matrimonial house so she had no other way except to return her parents’ house. 5. In the above circumstances, the Court feels that her earlier application engendering the case no. 65 of 2002 was not decided on merits, it was solely adjudicated on the ground that she refused to accompany her husband. 6. Learned counsel for the revisionist has placed reliance upon two precedents of Bombay High Court in the case of Sunanda Vs. Chandrakant reported in 1989 CRLJ 398 and Janabai Vs. Krishna Ravba Rithe reported in 1993 CRLJ 1183. In both the above precedents, it has been held that in particular circumstances, if second petition under Section 125 Cr.P.C. is moved by wife then the same is not barred by the principle of res judicata. 7. Learned counsel for the revisionist argued that Ayodhya Prasad has a chunk of agricultural land besides other means of earnings while Gyanwati and her son are living in penury. 8. So in these circumstances, the Court feels that revision has merits and liable to be allowed. Accordingly, the revision is allowed. 7. Learned counsel for the revisionist argued that Ayodhya Prasad has a chunk of agricultural land besides other means of earnings while Gyanwati and her son are living in penury. 8. So in these circumstances, the Court feels that revision has merits and liable to be allowed. Accordingly, the revision is allowed. Impugned judgment and order dated 05.10.2007 passed by Judge Family Court in misc. criminal case no. 198 of 2006 is hereby quashed. Learned Judge, Family Court, Udham Singh Nagar is directed to restore the said case and after rendering opportunity for adducing evidence to both the parties and adjudicate the matter afresh. This Court further observes that taking into account the poor condition of the Gyanwati, the court below may also award the cost for contesting the case, if the court deems it fit and proper and decide the petition of Gyanwati within 8 months after service upon Ayodhya Prasad.