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2015 DIGILAW 188 (MP)

Manoj Yadav v. Maya

2015-02-12

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The applicant has preferred the present revision against the order dated 26.5.2006 passed by the Third Additional Sessions Judge, Khandwa in criminal revision No. 185/2005, whereby the order dated 29.7.2005 passed by JMFC, Khandwa in criminal case No. 33/2003 was reversed and a maintenance of Rs.700/- per month was granted to the respondent. 2. Admitted facts of the case are that the marriage of the respondent and the applicant took place on 8.2.2001 at Khandwa. On 29.11.2001, the couple was blessed with a male child. 3. The respondent has filed an application under Section 125 of the Cr.P.C. before the JMFC, Khandwa that the applicant was in habit to demand a sum of Rs.10,000/-, a colour TV and a golden chain. He was in habit to beat the respondent after consuming liquor. It was alleged that the applicant had beaten the respondent even when she was pregnant. On 30.3.2002, the applicant poured kerosene upon the respondent and tried to set fire upon her. She was taken to the hospital and police station and thereafter, she was taken by her parents. The applicant never tried to bring the respondent back to his house and therefore, since 31.3.2002, the respondent was residing with her parents. She gave a demand notice on 26.11.2002 but, the applicant avoided to take that notice. Hence, the respondent has moved a maintenance application for demanding maintenance of Rs.700/- and Rs.500/- per month for herself and her son Rahul respectively. 4. The applicant in his reply has denied about the allegations made by the respondent. He has pleaded that father of the respondent was an old person, who had a flour mill but, due to his old age, he could not run that flour mill. One brother of respondent was residing at Betul in his in-laws' house, whereas one brother of the respondent was earning his income by plying an auto-rickshaw The respondent and her parents have pressurized the applicant to reside with them and to run the flour mill. It was pleaded that the respondent was residing in her parents house on her own wish. Therefore, she was not entitled to get any maintenance. 5. The JMFC after considering the evidence adduced by the parties granted a maintenance of Rs.500/- per month to the respondent for her son Rahul but, the maintenance application for the respondent was dismissed. It was pleaded that the respondent was residing in her parents house on her own wish. Therefore, she was not entitled to get any maintenance. 5. The JMFC after considering the evidence adduced by the parties granted a maintenance of Rs.500/- per month to the respondent for her son Rahul but, the maintenance application for the respondent was dismissed. In revision, the revisionary Court reversed the order of the trial Court relating to maintenance of the respondent and granted a maintenance of Rs.700/- per month to the respondent. 6. Heard the learned counsel for the parties at length. 7. The JMFC has granted a maintenance of Rs.500/- per month to the child Rahul, through his mother, the respondent. The applicant did not file any revision against the order passed by the JMFC and therefore, the order passed by the JMFC has attained finality in respect to maintenance of the child and therefore, the applicant cannot challenge the order relating to maintenance of child in the present revision. Hence, no discussion, would be done relating to maintenance of the child in the present order. 8. So far as the quantum of maintenance is concerned, it is accepted by the applicant that he was working as a Conductor with some transporter and he did not submit his salary slip to show his income, therefore, the evidence given by the respondent Maya (P.W.1) can be accepted that the applicant was earning a sum of Rs.2,000/- per month. The applicant has his wife and one child in his family and therefore, he could keep 1/3rd of his income for his own maintenance and he could spare the remaining amount for the maintenance of his wife and child. Hence, if maintenance of Rs.700/- was granted to the respondent by the revisionary Court then, assessment of quantum done by the revisionary Court appears to be acceptable and there is no need to interfere in the order of assessment of the quantum. 9. The main issue in the case is as to whether the respondent was competent to get maintenance, without residing with the applicant. The trial Court has appreciated the evidence and found that there was no reason to get the maintenance, without residing with the applicant. 9. The main issue in the case is as to whether the respondent was competent to get maintenance, without residing with the applicant. The trial Court has appreciated the evidence and found that there was no reason to get the maintenance, without residing with the applicant. In this connection, Maya (P.W.1), Bhaggu (P.W.2) and Shiv Prasad Yadav (P.W.3) were examined to show that the respondent Maya was subjected to cruelty by the applicant for demand of dowry etc. However, the statement given by Bhaggu (P.W.2) is of no use. He was not the persons connected with the family of the applicant and he had no relation with the respondent, so that the respondent would have told about her problems to him. In the cross-examination of witness Bhaggu, he has accepted that no incident took place before him, whereas Shiv Prasad (P.W.3) has stated that the respondent was ousted from the house of the applicant in presence of Bhaggu. For remaining facts, evidence of Bhaggu is nothing but, a hearsay evidence and therefore, evidence of Bhaggu (P.W.2) was not at all relevant in the present case. Maya and her brother Shiv Prasad have stated about dowry demand of a colour TV, a golden chain and cash of Rs.10,000/- in a prototype manner. They have stated that the applicant was in habit to assault the respondent Maya in consequence of demand and he was in habit to assault the respondent Maya on and often after consuming liquor. Maya (P.W.1) has stated that when she was residing in the house of the applicant, her mother was a regular visitor to that house to know about the whereabouts of the respondent but, it is strange that mother of the respondent Maya was not examined before the trial Court. It was pleaded by the respondent that on 30.3.2002, the applicant poured kerosene upon her and tried to set fire upon her. She went to the Police Station and admitted in the Main Hospital, Khandwa in a critical condition but, the applicant did not visit the hospital to see her. Such pleadings are also made in the notice given by the respondent to the applicant. She went to the Police Station and admitted in the Main Hospital, Khandwa in a critical condition but, the applicant did not visit the hospital to see her. Such pleadings are also made in the notice given by the respondent to the applicant. Though the notice was not exhibited in the evidence of the respondent, a specific date was given for a particular crime committed by the applicant and therefore, the respondent and her witnesses could have filed the copy of FIR lodged at the concerned Police Station and copy of treatment papers to show that the respondent had sustained burn injuries caused by the applicant. Since the documents relating to treatment and the FIR have not been produced, an adverse inference should be drawn that no such incident took place and allegations are made hypothetically. 10. The respondent has alleged about the cruelty done by the applicant from time to time but, her evidence is different. According to the record, the applicant pleaded about the incident of arson took place on 30.3.2001 but, in her statement, she has stated that such incident took place on 31.3.2002. According to her pleadings, the incident of arson took place within two months of her marriage. Witnesses have also stated that she was ousted from the house of the applicant and therefore, she delivered a child when she was residing in her father's house. Thereafter, she was also taken and again she was ousted from the house of the applicant. On the other hand, the respondent Maya has accepted in para 7 of her statement that she resided with the applicant only for 4 months and thereafter, she left for her father's house because a dispute took place with the applicant and thereafter, she continued to reside with her father till filing of the application. 11. On considering the admission done by the respondent Maya in para 7 of her statement, it would be apparent that her marriage took place on 8.2.2001 and she resided with the applicant upto June 2001 and therefore, alleged incident of arson which took place on 31.3.2002 did not take place in the house of the applicant and therefore, the documents relating to FIR and injury report were not produced before the trial Court. 12. 12. In the light of aforesaid admission of the respondent, she never visited to the house of the applicant after delivery of her child Rahul and therefore, statement of the respondent Maya and her brother, Shiv Prasad that the applicant tortured her for dowry demand and ousted her from his house for second time, appears to be a falsehood and hence such statement cannot be accepted. It is strange that the respondent was ousted from the house of the applicant within four months of her marriage i.e. in June 2001 and thereafter, she kept silent for a longer period. Notice for demand of maintenance was given on 26.11.2002 i.e. after 17 months of her ouster. If the respondent was subjected to cruelty on the basis of dowry demand or otherwise then, she could not reside with her old father idolly. Her father would have taken some steps for reunion of the family. Panchayat of community would have been informed about the dispute. FIR could be lodged in those 17 months but, the respondent did not take any step for reconciliation in those 17 months. On the contrary, she has alleged about the overt-act of bride burning done by the applicant. Copy of FIR and MLC report have been suppressed by the respondent, without any reason. It is strange that her father and mother were not examined as witnesses. On the contrary, Bhaggu, friend of her brother Shiv Prasad was examined, without any basis. 13. Under such circumstances, it appears that a false case of dowry demand and cruelty was created by Shiv Prasad, brother of the respondent and therefore, the statement given by Maya and Shiv Prasad are contrary to the circumstances. Main evidence relating to cruelty done by the applicant was FIR and MLC report of the respondent relating to overt-act of bride burning done by the applicant but that was suppressed. In such a situation, if evidence of the parties is to be considered then, evidence given by the respondent and her witnesses appear to be not believable in comparison to the evidence given by the applicant and his witnesses. The JMFC has rightly held that the respondent had no reason to reside separately and get the maintenance from the applicant. The Additional Sessions Judge has reversed the order passed by the trial Court, without showing any illegality or perversity in the order. The JMFC has rightly held that the respondent had no reason to reside separately and get the maintenance from the applicant. The Additional Sessions Judge has reversed the order passed by the trial Court, without showing any illegality or perversity in the order. For acceptance of a revision, it is to be shown by the revisionary Court that any illegality or perversity was done by the trial Court. No reappreciation of evidence is permissible in a revision, therefore, the order passed by the Additional Sessions Judge in revision appears to be perverse and without jurisdiction because the Additional Sessions Judge could not reappreciate the evidence in the revision and drawn a different conclusion on the basis of facts. It was for the Additional Sessions Judge to point out the illegality or perversity committed by the trial Court in its order. Under such circumstances, the order passed by the JMFC should have been kept intact. No interference could be done in the order passed by the JMFC. In the light of aforesaid discussion, the order passed by the Additional Sessions Judge, appears to be perverse and without any jurisdiction, hence it cannot be sustained. 14. On the basis of the aforesaid discussion, the revision filed by the applicant appears to be acceptable and consequently, it is accepted. The order dated 26.5.2006 passed by the Third Additional Sessions Judge in criminal revision No. 185/2005 is hereby set aside and order dated 29.7.2005 passed by JMFC, Khandwa is confirmed. Consequently, the application under Section 125 of the Cr.P.C. filed by the respondent Maya for herself is dismissed. However, if the applicant would have paid any maintenance in compliance of the order passed by Additional Sessions Judge then, he would not be entitled to recover the same from the respondent. 15. Copy of the order be sent to both the Courts below alongwith their records for information and compliance.