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2013 DIGILAW 302 (MP)

Rekha Bai v. Kamlesh Rajak

2013-03-06

RAJENDRA MENON

body2013
ORDER : Rajendra Menon, J. It is seen from the record that the respondent has refused acceptance of notice. Challenging the order dated 18.5.2011, passed by the Sessions Court, Jabalpur, in Criminal Appeal No. 143/2011, rejecting an application for maintenance filed by the petitioner/wife and setting aside the grant of maintenance made by the Gram Nyayalaya Patan, District Jabalpur in Misc. Cr. Case No. 50/2009, this writ petition has been filed. 2. Petitioner Smt. Rekha Bai claims to have been married with the respondent on 6.5.2006, in village Rethra. Tehsil Patan, District Jabalpur as per Hindu rites and customs. It is said that after her marriage, the family of the respondent started harassing her by making demand for dowry, she was tortured mentally and a demand of Rs. 15,000 and motorcycle was made. She was threatened on the ground that she has brought less dowry, she became pregnant and it is said that she was kicked by her husband, as a result she underwent abortion. 3. Contending that in view of the above circumstances created by the respondent and his family members, the petitioner left her in-laws house and is now staying with her parents. An application was filed seeking maintenance of Rs. 5000 per month mainly on the ground that the respondent is an Auto Driver and he is earning Rs. 10,000 per month, his father is also a Doctor and earning Rs. 20,000-25,000 per month, they have 20 acres of land, therefore, the aforesaid maintenance be granted. The application was filed before the Gram Nyayalaya Patan, District Jabalpur and the learned Presiding Officer of the Gram Nyayalaya Patan, allowed the claim vide his order dated 21.4.2010 (Annexure P-1). 4. The respondent/husband filed an appeal before the Sessions Court, Session Division, Jabalpur and the learned Sessions Judge having allowed the appeal filed by the petitioner/husband, this writ petition is filed by the respondent seeking restoration of the order passed by the Gram Nyayalaya Patan, vide Annexure P-1 dated 21.4.2010. 5. Mr. 4. The respondent/husband filed an appeal before the Sessions Court, Session Division, Jabalpur and the learned Sessions Judge having allowed the appeal filed by the petitioner/husband, this writ petition is filed by the respondent seeking restoration of the order passed by the Gram Nyayalaya Patan, vide Annexure P-1 dated 21.4.2010. 5. Mr. Sumant Bhattacharya, learned Counsel for the petitioner took me through the order passed by the Gram Nyayalaya Patan, as contained in Annexure P-1, the statements of various witnesses are available in the original record received from the Courts below and submitted that a reasonable order passed by the Gram Nyayalaya Patan, granting maintenance to the wife has been interfered without any just cause or reason by the learned Sessions Judge and therefore, the grant of maintenance made by Gram Nyayalaya Patan, be restored. It was emphasized by him that the material available on-record and the evidence thus show that the respondent/husband has neglected in maintaining his wife. He has created circumstances which prevents her from residing with her husband and as the petitioner is unable to maintain herself, the grant made by the Gram Nyayalaya Patan, after due appreciation of the material available on record has been unnecessarily interfered with by the learned Sessions Judge and as the Sessions Judge has interfered with an unreasonable manner, this writ petition be allowed. 6. Even though none appears by the respondent. I have gone through the submissions made and analyzed the documents and material available on record. In this writ petition under Article 226/227 of the Constitution of India, scope of interference by this Court in such matter is very limited. 7. If the order passed by the Gram Nyayalaya Patan, as contained in Annexure P-l dated 21.4.2010 and the original material available are taken note of, it would be seen that the entire case has been decided by the Courts based on oral testimony of the parties concerned and the documents with regard to certain proceedings that took place in the family dispute Settlement Centre at the District Headquarters and the documents filed as Ex.D-1 to D-4. On behalf of the claimant wife she herself appeared and gave statement as PW-1, thereafter she examined 3 witnesses namely PW-2 Shambhu, PW-3 Pattidar and PW-4 Suraj Rajak. On behalf of the claimant wife she herself appeared and gave statement as PW-1, thereafter she examined 3 witnesses namely PW-2 Shambhu, PW-3 Pattidar and PW-4 Suraj Rajak. On behalf of the non-applicant, his own statement was recorded as AW-1 and thereafter he examined 3 witnesses namely AW-2 Mahesh Verman, AW-3 Imrat Lal Kotwar and AW-4 Sunderlal. The main contention of the petitioner before the Trial Court was that the respondent/husband is a Auto driver and earning Rs. 10,000 per month. It was also her case that his father in-law is a Doctor and earning Rs. 20,000 to 25,000 and they have 20 acres of land. However, except for the oral statement of the witnesses, no other documentary evidence or material was produced. That apart even for the unlawful activity of the respondent/husband and his family members the only material adduced by the petitioner was the statements of the witnesses. The oral statement of the witnesses of both the parties were contradictory to each other and the learned Presiding Officer of the Gram Nyayalaya Patan, held that in such cases pertaining to harassment and demand for dowry, the entire incident of torture took place within the four corners of the house, where independent witnesses are not available and therefore, giving due weightage to the statement of the petitioner and her witness the claim was decided, but as far as the income and earning of the respondent/husband is concerned as the petitioner did not produce any documents or other material, it was found by the Gram Nyayalaya Patan, that the husband was a Mazdoor and he should not be earning more than Rs. 60 to 70 per day and accordingly the maintenance of Rs. 1000 was assessed and directed to be paid. When the matter went to the Sessions Court Sessions Judge re-evaluated the entire evidence and found that the claim of the petitioner with regard to harassment and demand of dowry was not properly established and holding that the petitioner had left her husband without any just cause or reason, interference was made by the Sessions Court. When the matter went to the Sessions Court Sessions Judge re-evaluated the entire evidence and found that the claim of the petitioner with regard to harassment and demand of dowry was not properly established and holding that the petitioner had left her husband without any just cause or reason, interference was made by the Sessions Court. As already indicated hereinabove, the learned Gram Nyayalaya Patan, had proceeded on the assumption that the allegations of dowry are correct and the evidence produced by the claimant was accepted on the assumption that in such cases, it is difficult to get proper evidence, as the dispute took place in the house where the entire family members are only present. However, on scrutinizing the evidence that came on record, the learned Sessions Judge found the following circumstances, which compelled the learned Sessions Judge to take a different view. The circumstances found to be glaring in nature by the learned Session Judge are: (a) It was the case of the petitioner and her family members that the petitioner is being harassed and demand of dowry is being made. It was found by the learned Sessions Judge that except for making the oral statement in this regard neither the petitioner nor her father has made any complaint to any authority in this regard. It was found that no report is lodged to the police with regard to harassment nor any documents produced to show making of complaint or communication to any person or authority in this regard. (b) Only oral statement of harassment is given by the petitioner and her two witnesses PW-2 Shambhu Prasad and PW-4 Suraj Rajak. However, it was found by the Sessions Judge that Shambhu Prasad in his cross-examination admitted that the petitioner herein has never made any compliant nor talked to him about any harassment by her husband. It was found that the statement made by PW-2 Shambhu Prasad is hearsay evidence. Similarly, it was found that PW-4 Suraj Rajak had made statement about assault and harassment of the petitioner by her husband and this witness also states that she has never made any complaint to him and said her about this but he came to know about the same from other sources, it was thus hearsay evidence. Similarly, it was found that PW-4 Suraj Rajak had made statement about assault and harassment of the petitioner by her husband and this witness also states that she has never made any complaint to him and said her about this but he came to know about the same from other sources, it was thus hearsay evidence. Accordingly, the only statement about the harassment was the oral statement of the petitioner and her father and there was no documentary evidence, police report, complaint, etc. in this regard. Similar was the position with regard to demand of Rs. 15,000 and motorcycle. That apart with regard to submission of abortion, statement of the petitioner and her father were contradictory. It was found that in her statement, petitioner Smt. Rekha Bai has stated that when she was pregnant, her husband used to assault her, as a result, her pregnancy was aborted. However, father of petitioner stated that he had gone to take his daughter when she was pregnant and when she was being taken to her house, respondent came and assaulted her, as a result, abortion took place. It was found that the petitioner is talking about the loss of the child by abortion due to harassment in her house, which is not supported by her father statement. That apart no documentary evidence with regard to treatment or medical evidence of the petitioner, etc. was available on record. Apart from the aforesaid circumstances the learned Sessions Judge has meticulously analyzed each and every aspect of the matter and has found that the petitioner has failed to prove that she had left the house because of harassment and demand of dowry. The learned Sessions Judge found that the story as put-forth by the petitioner and her father seems to be wholly unbeliable and it is not established from the evidence available on record. That apart the learned Sessions Judge found that the documents available on record adduced by the parties go to show that when the matter was taken up in the Family Dispute Redressal Centre under the police department, the record and the proceedings were available, which was filed as Ex.D-1. In this the allegation of harassment was not made. That apart the learned Sessions Judge found that the documents available on record adduced by the parties go to show that when the matter was taken up in the Family Dispute Redressal Centre under the police department, the record and the proceedings were available, which was filed as Ex.D-1. In this the allegation of harassment was not made. On the contrary, it was found that when the proceedings for conciliation took place in the centre, the husband was willing to take the petitioner in his house but the petitioner herself said that she does not want to go with her husband and it was indicated that without any reason her pregnancy was aborted. 8. Taking note of the totality of the circumstances and the material available, the finding recorded by the learned Sessions Court is that the ground of harassment, ill treatment and demand of dowry is not proved and the wife has left the house at her own and therefore, the application for maintenance is rejected. The order passed by the learned Sessions Court on the grounds as indicated hereinabove and the material available on record thus show that the learned Sessions Judge has given a reasonable finding based on due appreciation of the material available on record, nothing is pointed out to this Court to show that the said finding recorded by the Sessions Judge is perverse. A reasonable finding arrived at on due appreciation of the material available on record cannot be interfered by this Court until and unless, the same is found to be erroneous or perverse to such extend that no reasonable person would arrive at such conclusion on the basis of the evidence available. 9. Accordingly, finding the learned Sessions Judge to have adopted the reasonable attitude in the matter and finding no interference on the grounds canvassed in this petition, this petition is dismissed. The petition accordingly stands dismissed.