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2013 DIGILAW 950 (RAJ)

Hitesh Solanki v. Bharti

2013-05-09

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - In this criminal revision petition, the petitioner Hitesh Solanki, who was non-applicant in proceedings under Section 125, Cr.P.C. in Misc. Criminal Case No. 396/2011 has challenged the order dated 13.9.2012 passed by the Judge, Family Court, Udaipur. By the impugned order, the petitioner has been directed by the learned lower court to pay maintenance of Rs. 6000/- per month to his wife Smt. Bharti under the provisions of Section 125, Cr.P.C.. 2. At the stage of admission, I have heard with the consent of the parties, final arguments on the merits of the criminal revision. 3. The petitioner has alleged that he had got an ex parte decree of restitution of conjugal rights against the respondent on 1.6.2012 from Family Court, Bandra, Mumbai and still without considering that ex parte decree, the learned lower court has passed an order of maintenance against him for no reason. 4. It is not in dispute that the petitioner and the respondent solemnized their marriage on 20.5.2010 and then after they lived together at Mumbai as husband and wife and after some time, respondent Smt. Bharti started living at Udaipur, while husband petitioner Hitesh Solanki used to live at Borivalli(East) Mumbai, Maharashtra. The petitioner has alleged that the learned trial court passed the impugned order on 13.9.2012 without considering the ex parte decree of restitution of conjugal rights which was passed in his favour by the competent Family Court, Bandra. It has been argued by the petitioner that Smt. Bharti had left the matrimonial home voluntarily and while the petitioner is ready and willing to keep her with him. Smt. Bharti was not ready to live with him and so the lower court could not have ordered him to pay maintenance in her favour. It has also been argued that paying capacity of the petitioner has not been properly assessed by lower court. The petitioner has prayed for quashing the impugned order dated 13.9.2012. 5. The petitioner has submitted following rulings in support of his arguments: (1) Smt. Geeta Kumari v. Shiva Charan Das, 1975 Cri.L.J. 137. In this case, it was held by this Court that when there is a decree for restitution of conjugal rights in favour of husband, then it may be presumed that the wife had no sufficient reason for refusing to live with her husband. (2) M. Kaliya v. Lakshmi, (2003) 1 M.L.J. 73 . In this case, it was held by this Court that when there is a decree for restitution of conjugal rights in favour of husband, then it may be presumed that the wife had no sufficient reason for refusing to live with her husband. (2) M. Kaliya v. Lakshmi, (2003) 1 M.L.J. 73 . In this ruling, Honble the High Court of Madras has held that when ex parte decree of restitution of conjugal rights in favour of husband was not duly challenged by the wife in time,then she cannot say that she is not living separately from her husband voluntarily and in such case, she will not be entitled any maintenance for herself or for her minor daughter. (3) Manish Aggarwal v. Seema Aggarwal, (FAO No. 388/2012, CM No. 15667/2012 and CM No. 14668/2012 decided on 13.9.2012). In this case, Hon'ble Delhi High Court has decided that a revision lies against the order of Family Court providing for maintenance under the provisions of the Criminal Procedure Code. 6. Per contra, it has been argued by non-petitioner Smt. Bharti that she was not in knowledge of any ex parte decree for restitution of conjugal rights which was passed against her by the court of Bandra. She says that no doubt, she was in knowledge of the matrimonial proceedings being pending at the Family Court of Bandra but as per her, factum of ex parte decree was hidden by the petitioner at the time of statement of petitioner Hitesh Solanki on 18.6.2012 in Family Court, Udaipur. Ex parte decree for restitution of conjugal rights was passed by the Family Court, Bandra (Petition No. A-877/2011) on 1.6.2012 and the statement of petitioner Hitesh Solanki was recorded in the Family Court, Udaipur in the proceeding under Section 125, Cr.P.C. on 18.6.2012. At that time he should have alleged that he has got an ex parte decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. He deliberately has hidden the fact of ex parte decree, so it appears that the petitioner has not come with clean hands before the court. In the Family Court, Bandra also he has hidden the fact that proceedings under Section 125, Cr.P.C. are pending against him in the Family Court, Udaipur. He deliberately has hidden the fact of ex parte decree, so it appears that the petitioner has not come with clean hands before the court. In the Family Court, Bandra also he has hidden the fact that proceedings under Section 125, Cr.P.C. are pending against him in the Family Court, Udaipur. It has also been argued that the learned lower court has properly appreciated the evidence of the petitioner as well as respondent and the order under Section 125, Cr.P.C. is perfectly justified. 7. In the circumstances of the case, the petitioner is not entitled to any equitable relief from this Court out of way. It appears that Smt. Bharti had filed a petition under Section 125, Cr.P.C. at Family Court, Udaipur in which Hitesh Solanki did not contest his case properly and ultimately at the time of passing of the impugned order Hitesh Solanki was absent. Similarly, in proceedings under Section 9 of the Hindu Marriage Act, 1955 at Family Court, Bandra, Smt.Bharti was not able to contest her case properly and ultimately, an ex parte decree for restitution of conjugal rights has been passed by the Family Court, Bandra on 1.6.2012 against her. Had the both parties been advised to try for an amicable settlement through Lok Adalat, it would have been better but they cannot be forced to do so. 8. In this background, I have perused the impugned order dated 13.9.2012. I have also perused the statements of Smt. Bharti (AW-1) and Narendra (AW-2) and I have also perused the statement of Hitesh Solanki (NAW-1) and Smt. Bhanu (NAW-2). It cannot be said that the learned lower court has not appreciated the facts and evidence in the proper perspective. The order of the Family Court, Udaipur cannot be called arbitrary or perverse and it appears to be perfectly justified order. Petitioner Hitesh Solanki has hidden the fact of ex parte decree in his court statement in the learned lower court and so now he cannot take benefit of that ex parte decree in this criminal proceeding. The order of the Family Court, Udaipur cannot be called arbitrary or perverse and it appears to be perfectly justified order. Petitioner Hitesh Solanki has hidden the fact of ex parte decree in his court statement in the learned lower court and so now he cannot take benefit of that ex parte decree in this criminal proceeding. On 18.6.2012 when the statement of the petitioner was recorded in the lower court, he was apprehending that if Smt. Bharti comes to know about ex parte decree, she will immediately apply for setting aside the ex parate decree because at that time, she was in limitation to file the application under Order 9, Rule 13 , IPC and, so deliberately he had hidden this fact in his court statement. 9. In the circumstances of the case, this revision petition filed by petitioner Hitesh Solanki is devoid of force and he deserves no sympathy from this Court and hence his revision petition is hereby dismissed.Revision dismissed. *******