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2014 DIGILAW 383 (MP)

Prakash Kushwaha v. Pooja

2014-04-04

N.K.GUPTA

body2014
ORDER 1. The applicant has preferred the present revision against the order dated 28.6.2008 passed by the Principal Judge, Family Court, Bhopal, whereby a maintenance of Rs.1,500/- per month was granted to the respondent. 2. The facts of the case, in short, are that, the respondent has moved an application under section 125 of the CrPC against the applicant that the marriage of the respondent and the applicant took place on 12.7.2000 at Hanuman Mandir, Karod square, Bhopal. For first 6 months, the behaviour of the applicant and his family members was good. Thereafter, the applicant’s family members started harassing the respondent for dowry demand. They directed to bring a sum of Rs.50,000/- and a motorcycle from her father. On 6.1.2003, the respondent had submitted an application to Pariwar Paramarsh Kendra, Police Station Shahjahanabad, District Bhopal. Thereafter, the applicant took her again but, the behaviour of the applicant and his family members was same as it was prior to that compromise. The respondent sent a letter to her parents on 7.6.2004 and thereafter, the applicant and his family members sent her to her parents house on 18.9.2005. She had also lodged an FIR for offence under section 498A of IPC and section 3/4 of Dowry Prohibition Act. She claimed a maintenance of Rs.5,000/- per month by showing that the applicant was having a hotel and also some agricultural land and his income was more than Rs.1 lac per annum by cultivation. 3. The applicant in his reply denied all the allegations made by the respondent. According to the applicant on 18.9.2005, the respondent was taken by her cousins Pappu and Lakhan. Thereafter, the respondent was not sent to the house of the applicant. The applicant denied about his income. He has pleaded that the respondent was earning a sum of Rs.4,000-5,000/- per month by tuitions. She was also earning a sum of Rs.2,000-2,500/- by stitching and embroidery. It was specifically pleaded that initially the parents of the respondent did not sent the respondent to the house of the applicant with the pretext that the respondent was of tender age. The respondent attended various functions in the house of the applicant for 1-2 days and again she went to her parents house. On 18.5.2003, there was a marriage of sister of the applicant and the respondent was residing with her sister at Ujjain but, she was not sent by her sister. The respondent attended various functions in the house of the applicant for 1-2 days and again she went to her parents house. On 18.5.2003, there was a marriage of sister of the applicant and the respondent was residing with her sister at Ujjain but, she was not sent by her sister. On 18.9.2005, Pappu, cousin of the respondent along with Lakhan and Kallu came to the house of the applicant and took the respondent and thereafter, she did not come to the house of the applicant and therefore, it is prayed that maintenance application may be dismissed. 4. After considering the evidence adduced by the parties, the learned First Additional Principal Judge, Family Court, Bhopal vide order dated 18.5.2006 granted a maintenance of Rs.2,000/- per month to the respondent from the date of the order. However, that order was an ex parte order and thereafter, it was set aside. Again on 28.6.2008, the learned Principal Judge, Family Court, Bhopal after considering the evidence adduced by the parties, granted a maintenance of Rs.1,500/- per month to the respondent from the date of the order. 5. I have heard the learned counsel for the parties. 6. Learned counsel for the applicant submits that the applicant has moved an application under section 9 of the Hindu Marriage Act and after grant of decree for restitution of conjugal rights, the respondent did not come to the house of the applicant and, therefore, she was not entitled for maintenance. In support of this contention, reliance is placed upon the order passed by the Single Bench of this Court in case of Renu (Smt.) v. Hiralal [ 2002(2) JLJ 117 ]. In the present case, no such evidence was placed before the Family Court that a decree under section 9 of the Hindu Marriage Act was passed and thereafter, the respondent did not complied with the decree. It was for the applicant to plead such a plea in his reply and thereafter, to adduce the evidence on that plea but, neither such plea was taken before the trial Court, nor such evidence was produced before the trial Court and therefore, in absence of the pleadings, such plea cannot be raised in the present revision. 7. It was for the applicant to plead such a plea in his reply and thereafter, to adduce the evidence on that plea but, neither such plea was taken before the trial Court, nor such evidence was produced before the trial Court and therefore, in absence of the pleadings, such plea cannot be raised in the present revision. 7. The applicant could not prove anything contrary to his pleadings and therefore, his plea relating to the fact that wife was not complying the decree of conjugal rights and, therefore, she is not entitled for maintenance cannot be accepted. 8. In the present case, the respondent Pooja (PW1) was examined in her ex parte evidence in May, 2006 and again she was examined on 26.2.2008 during the bi parte evidence. She has alleged that she was tortured by the applicant and his family members and therefore, she made a complaint Ex.P-1 to the Pariwar Paramarsh Kendra and again she was sent to the house of the applicant but, in the year 2005, she was ousted from the house of the applicant and thereafter, she was residing at her parents house. She refused the suggestion that she went to the house of her parents alongwith Pappu, Lakhan and Kallu. On the other hand, Prakash (DW1) and Shakun (DW2) have stated that the respondent did not come to the house of the applicant for residing continuously and therefore, she went to the house of her parents in the year 2005 and thereafter, she did not come back. It is admitted that the witness Shakun (DW2) is wife of elder brother of the applicant Prakash and cousin of the respondent Pooja. Under such circumstances, the testimony of the witness Shakun has some weight because she is a common relative of the parties. 9. It is a case of oath against oath and, therefore, the testimony of the witnesses should have been considered on the basis of other circumstantial evidence. The marriage of the parties took place on 12.7.2000 and it is alleged by the respondent that after 6 months of her marriage, she was being harassed for dowry demand by the family members of the applicant including Shakun (DW2). The marriage of the parties took place on 12.7.2000 and it is alleged by the respondent that after 6 months of her marriage, she was being harassed for dowry demand by the family members of the applicant including Shakun (DW2). However, if her application Ex.P-1, which was given to Pariwar Paramarsh Kendra, Shahjahanabad, District Bhopal is perused then, it would be apparent that she did not mention any fact of harassment on the basis of dowry demand. She had mentioned that her husband was not talking properly with her. Everytime, her elder brother-in-law was coming to her parents house to take her but, her husband was not coming to her parents house to take her. The respondent Pooja could not show any reason as to why she did not mention about the harassment done by the applicant and his family members on the basis of dowry demand in that application and, therefore, it would be clear that there was no harassment to the respondent on the basis of dowry demand or any other reason in the house of the applicant. Looking to the averments made in application Ex.P-1, it appears that the evidence given by Prakash (DW1) and Shakun (DW2) is correct. The respondent was not visiting to the house of the applicant and therefore, he had no harassment of any kind. She made a complaint about the strange behaviour of the applicant, which could be due to behaviour of the respondent that she was not residing in the house of the applicant regularly. Under such circumstances, it is established that there was no harassment to the respondent on the basis of dowry demand or otherwise upto January, 2003. Thereafter, when the respondent went to the house of the applicant due to compromise took place before Pariwar Paramarsh Kendra then, if she was tortured or harassed for demand of dowry thereafter then, she would have lodged a complaint to her parents as well as to the Pariwar Paramarsha Kendra, Shahjahanabad again in the period of February, 2003 to May, 2005. If she was thrown out of the house of the applicant in May, 2005 then, she should have immediately visited to the concerned police station to lodge the FIR against the applicant. If she was thrown out of the house of the applicant in May, 2005 then, she should have immediately visited to the concerned police station to lodge the FIR against the applicant. The respondent has submitted that she had lodged an FIR for offence under section 498A of IPC but, no copy of that FIR is filed before the trial Court. It is also apparent that the respondent did not examine any witness in her support. She examined herself only. According to her version, she was ousted in May 2005 and the application under section 125 of the CrPC was moved before the Family Court on 24.2.2006. No reason has been shown as to why the respondent kept silence for 9 months after her ouster from the house of the applicant. 10. Looking to the entire conduct of the respondent, the evidence given by Prakash and Shakun appears to be correct that the respondent was reluctant to reside in the house of the applicant and she left the house of the applicant in May, 2005 with help of Pappu and Kallu etc. and, therefore, if the applicant lodged a petition under section 9 of the Hindu Marriage Act then, as a counter blast, FIR for offence under section 498A of IPC was lodged and a maintenance application was moved. Shakun (DW2) was the cousin of the respondent and to impeach her testimony, a suggestion was given in para 3 of her statement by the learned counsel for the respondent that she had illicit relations with the applicant. Such suggestion is given by the learned counsel for the respondent without any basis. No such pleading was done by the respondent that she had any problem in the house of her husband due to illicit relations of her husband and her cousin Shakun. The suggestion as given by the learned counsel for the respondent indicates that he has no case and, therefore, he tried to impeach the character of the witness Shakun without any basis. Such type of objectionable question was asked to the witness, without any pleading and the trial Court would have disallowed the question asked by the learned counsel for the respondent. Under such circumstances, it would be apparent that the testimony of the witness cannot be brushed aside and it was the respondent who did not want to reside in the house of the applicant. Under such circumstances, it would be apparent that the testimony of the witness cannot be brushed aside and it was the respondent who did not want to reside in the house of the applicant. Under such circumstances, it is not a case in which the respondent could get any maintenance from her husband without residing with him. 11. The learned counsel for the applicant has placed his reliance upon the order passed by the Single Bench of this Court in case of Balakram v. Smt. Durgabai and others [ 2007(I) MPWN 10 ], in which the application for maintenance was dismissed because wife was not joining the company of her husband. In the light of the aforesaid order, the respondent was not entitled to get any maintenance from the applicant. Though the order in case of Balakram (supra). is given on the basis of denial to the decree of restitution of conjugal rights but, the general principles as discussed in that case was that the wife has denied to live with the husband and therefore, she was not entitled for any maintenance. In the present case, as discussed above, the wife has denied to join the company of her husband without any appropriate reason and, therefore, she was not entitled for any maintenance under section 125 of the CrPC. 12. Before concluding the present order, the dependency of the respondent should also be considered. The learned Principal Judge, Family Court has properly assessed the income of the applicant and dependency of the respondent and granted a maintenance of Rs.1,500/- per month. No illegality or perversity is visible in the order relating to assessment of maintenance and therefore, there is no need to disturb the dependency of the respondent as assessed by the trial Court. 13. On the basis of the aforesaid discussion, it would be apparent that the trial Court has passed a perverse order in favour of the respondent, which cannot be sustained. It is a fit case, in which an interference is required from the side of this Court to set aside a perverse order. The respondent herself is at fault and she is not joining the company of her husband without any reasonable cause and therefore, she is not entitled for any maintenance. Consequently, the revision filed by the applicant Prakash Kushwaha is hereby allowed. The respondent herself is at fault and she is not joining the company of her husband without any reasonable cause and therefore, she is not entitled for any maintenance. Consequently, the revision filed by the applicant Prakash Kushwaha is hereby allowed. The impugned order dated 28.6.2008 passed by the learned Principal Judge, Family Court, Bhopal is hereby set aside. Also, the application under section 125 of the CrPC filed by the respondent is dismissed. 14. A copy of the order be sent to the trial Court along with its record for information.