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2013 DIGILAW 1404 (MP)

Tashabbar Ali v. Rubeena Begum

2013-11-18

G.S.Solanki

body2013
ORDER 1. This revision has been preferred by the applicant under section 397/401 of the CrPC being aggrieved by order dated 10.10.2011 passed by the Principal Judge, Family Court, Sagar in Misc. Criminal Case No. 25/2011 wherein the application filed by the respondent/wife under section 125 of the CrPC has been partly allowed and the applicant/husband has been directed to pay a sum of Rs. 1,500/- per month to the respondent/wife as maintenance. 2. The facts, in short, giving rise to this revision are that admittedly the marriage of the applicant and the respondent was solemnized on 31.5.2009 according to Muslim custom at Sagar. The respondent/wife filed an application under section 125 of the CrPC before the Principal Judge, Family Court, Sagar on 8.2.2011 inter-alia pleading that after marriage when the respondent/wife lived at her matrimonial house for about 7 days, she was beaten by the applicant/husband on the ground of bringing lesser dowry. This incident was repeated again when she had gone to live with the applicant second time. The respondent/wife got pregnant in January, 2010, she was deserted in September, 2010 after making assault on her. She delivered a dead child in her parental house, but none from his matrimonial house came to take her care, therefore, the respondent/wife is living in her parental house and the applicant/husband has neglected to maintain her. She is unable to maintain herself. The applicant has agricultural land as well as shop of furniture and meat. He has sufficient source of income. 3. The applicant/husband in his reply denied the fact that he demanded any dowry and further denied that he assaulted the respondent/wife. He further submitted that the respondent/wife is having sufficient income by tuitions and from the work of knitting and stitching. He had gone to the parental house of the respondent/wife, but he was beaten by her family members. A criminal case is pending in this regard before JMFC, Begumganj, District Raisen. The respondent/wife has herself refused to live with the applicant and she is living separately without any sufficient reason. 4. On appreciation of evidence on record, learned trial Court has partly allowed the application filed by the respondent/wife under section 125 of the CrPC and the applicant/husband has been directed to pay a sum of ‘ 1,500/- per month to the respondent/wife as maintenance, hence this revision. 5. 4. On appreciation of evidence on record, learned trial Court has partly allowed the application filed by the respondent/wife under section 125 of the CrPC and the applicant/husband has been directed to pay a sum of ‘ 1,500/- per month to the respondent/wife as maintenance, hence this revision. 5. Learned counsel for the applicant has submitted that the trial Court has committed illegality in not appreciating the evidence on record in its proper perspective. It is further submitted that during the pendency of the aforesaid application, an ex-parte decree of restitution of conjugal rights (A-6) has been passed by Civil Judge Class II, Begumganj, which shows that the respondent/wife herself refused to live with the applicant/husband and she is living separately without any sufficient cause. Counsel has placed reliance on a decision of this Court in Renu w/o Hiralal v. Hiralal @ Harish s/o Bhaggulal Gaur – 2002 (2) JLJ 117 = 2002(3) MPLJ 320 . 6. Learned counsel for the respondent/wife has supported the order passed by the trial Court. He has further submitted that the ex-parte decree for restitution of conjugal rights was passed behind the back of the respondent/wife. The respondent has the right to file appropriate application before Civil Judge Class II for setting aside the aforesaid ex-parte decree. On the basis of aforesaid arguments, the counsel has prayed for dismissal of this revision. 7. I have heard the learned counsel for the parties at length and gone through the impugned order and other material on record. It reveals that Case No.8-A/2011 (A-6) was filed on 15.3.2011 after institution of application under section 125 of the CrPC by the respondent/wife on 8.2.2011 before the Family Court and the decree was passed ex-parte. Certainly, the respondent/wife has the right to file an application before Civil Judge Class II, Begumganj for setting the said ex-parte decree. In these circumstances, it is proved on record that the suit for restitution of conjugal rights was filed by the applicant/husband after filing of application under section 125 of the CrPC by the respondent/wife before the Family Court and this fact was not raised before the trial Court. 8. The facts of Renu w/o Hiralal v. Hiralal @ Harish (supra) are totally different than the instant case. 8. The facts of Renu w/o Hiralal v. Hiralal @ Harish (supra) are totally different than the instant case. In that case the decree of restitution of conjugal rights appears to be passed on merits and execution proceedings also appears to be pending against the wife. In the instant case, the respondent/wife specifically stated that she was beaten by the applicant/husband and when she was living in her parental house and delivered a dead child, no one from his matrimonial house came there to take her care. This fact is duly corroborated by Shakila. It is true that she is earning some money by performing the work of knitting and stitching but, in my opinion, it would not be sufficient for her livelihood. 9. Learned counsel for the applicant has drawn the attention of this Court towards the cross-examination of the respondent wherein she has admitted that she was called at Mahila Police Station for the purpose of compromise and her husband also told her in the Court to live together but she had not gone with her husband, thus she herself has refused to live with the applicant/husband. 10. The respondent/wife in her statement has stated that she was beaten by her husband, she does not trust him, therefore, she does not want to live with him. Thus, it cannot be said that the prosecutrix is living separately without any sufficient reason. 11. So far as, source of income of the applicant is concerned, it is well established principle of law that even if the applicant has no source of income, he will have to work hard to pay maintenance to his wife. 12. Considering the overall facts and circumstances of the case and the fact that the ex-parte decree may be set aside by the trial Court, if so not, or if the respondent eventually succeeds in the civil suit, then the applicant/husband may file an application under section 125(5) of the CrPC for cancellation of impugned order before trial Court but, at this juncture, I am of the considered view that the trial Court has not committed any illegality in directing the applicant/husband to pay a sum of Rs. 1,500/- per month to the respondent/wife as maintenance. 13. Consequently, the revision sans merits, same is hereby dismissed. The record of the trial Court be sent back immediately for information and necessary action. ..........