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Madhya Pradesh High Court · body

2015 DIGILAW 540 (MP)

Sanchita Jain v. Naresh Jain

2015-05-06

B.D.RATHI

body2015
JUDGMENT : B.D. Rathi, J. 1. Heard finally with the consent of the parties on the question of admission. 2. This petition under Section 482 of the Code of Criminal Procedure by petitioner/wife is directed against an order dated 31/12/2009 passed in Criminal Revision No. 80/09 by the Fourth Additional Sessions Judge (Fast Track), Shivpuri, whereby the maintenance application filed by the petitioner-wife under Section125 of Cr.P.C. was dismissed and the order passed by the trial Magistrate in Criminal Miscellaneous Case No. 15/07 was upheld. 3. The facts in brief leading to filing the present petition are that the petitioner is the legally wedded wife of the respondent. It is alleged that after her marriage, she was tortured mentally and physically by her husband for non-fulfillment of illegal demand of dowry. Ultimately, she was compelled to leave her matrimonial house. In such circumstances, she started residing separately with her two daughters from her husband. The respondent being established and having an attractive income is neglecting to maintain his wife. She therefore filed an application under section 125 of Cr.P.C. which was registered as MJC No. 15/07 in the court of Judicial Magistrate First Class, Shivpuri to get an amount of Rs. 5,000/- per month for maintaining herself and her two daughters. This application was dismissed on the ground of lack of jurisdiction because the petitioner was residing at Sagar, separately from her husband, without showing any sufficient reason. Being aggrieved by that order, the petitioner preferred criminal revision before the court of Fourth Additional Sessions Judge, Shivpuri. Same was also dismissed vide order dated 31/12/09. It was observed by the revisional court that in spite of decree passed by the competent court against the petitioner in a matter of restitution of conjugal right under Section 9 of the Hindu Marriage Act, she is not going to live with her husband. Against the said order passed by the revisional court, the petitioner has knocked the doors of this court. 4. Learned counsel for the petitioner contended that the impugned orders of both the courts-below are against the facts and law, hence, same is liable to be set aside. It is submitted that decree for restitution of conjugal right on application under Section 9 of HMA vide Ex.D/6 was issued on 5/5/2008 from the family court at Ajmer (Rajasthan) in Case No. 274/07. It is submitted that decree for restitution of conjugal right on application under Section 9 of HMA vide Ex.D/6 was issued on 5/5/2008 from the family court at Ajmer (Rajasthan) in Case No. 274/07. The said decree was passed in ex parte manner and the petitioner was not aware of the fact of passing of such decree and apart that for non-compliance of the aforesaid decree, the maintenance amount cannot be denied to the petitioner. In support of the submissions, learned counsel for the petitioner placed reliance on the decisions of this court rendered in the cases of Babulal Vs. Sunita ( 1987 JLJ 484 ), Rewalal Vs. Smt. Urmila [ 2009(2) MPLJ 378 ] and Prashant Shrivastava Vs. Smt. Sushma Shrivastava & Anr. I.L.R [2010] MP 1216. 5. On the contrary, it is submitted by the learned counsel appearing for the respondent that the petitioner had taken actively part in the proceedings under Section 9 of the HMA and she had also filed reply but all of a sudden or to say after due diligence restrained herself from appearance and because of that the court proceeded ex parte against her. It is submitted that respondent is ready and willing to take her back with him but she is adamant. The respondent never made the illegal demand nor committed any kind of cruelty on her. She is without any reasonable cause residing separately from him instead to maintain relationship as husband and wife. 6. Under the circumstances, it is submitted by the counsel for the respondent that petitioner is not entitled to receive any amount of maintenance from her husband and the petition is liable to be dismissed by maintaining the orders passed by the two courts-below. 7. Having regard to the arguments advanced by the parties, the orders of the revisional court and of trial Magistrate with entire evidence have been perused. 8. Firstly, this petition in the shape of second revision is not tenable in the eyes of law and accordingly it deserves to be dismissed on this sole ground. Apart that, in the original application filed under section125 of Cr.P.C. for grant of maintenance, it was mentioned by the petitioner in para 2 that 7-8 months prior to the date of filing of such application, she was ousted by the respondent-husband and her entire Streedhan and belongings were snatched by her husband. Apart that, in the original application filed under section125 of Cr.P.C. for grant of maintenance, it was mentioned by the petitioner in para 2 that 7-8 months prior to the date of filing of such application, she was ousted by the respondent-husband and her entire Streedhan and belongings were snatched by her husband. This averment of the petitioner is not able to be predicated as neither FIR was lodged with the police nor any complaint was filed. Further no such evidence was produced during the course of hearing before the two courts-below. Moreover, in the reply filed in counter of the petition under Section 9 of the HMA it was pleaded by the petitioner that she was subjected to cruelty for non-fulfillment of demand of dowry and on that count she was ousted but in the maintenance application, the factum of cruelty committed for non-fulfillment of dowry was not pleaded. In the petition filed for restitution of conjugal right, the petitioner after filing reply remained absent during the whole proceedings taken up by the court for compromise. No evidence was adduced by her. In such circumstances, the decree passed the trial court in the matter of restitution of conjugal rights had to be followed by the petitioner but till today she is not willing to live with her husband, which shows that she is already weighing in mind to avoid the company of her husband without any reasonable cause. In such circumstances, the decisions cited by the counsel for the petitioner would not render any assistance to him being distinguished on facts of the present case. 9. After considering the facts and circumstances and in the light of the discussions made herein above, it appears that the petitioner/wife failed to prove by leading any evidence that her husband has ever neglected or refused to maintain her. On the contrary, from the evidence on record it is clear that the petitioner is living separately from her husband without any reasonable cause and failed to comply with the terms of the decree passed in the petition under section 9 of the HMA. Therefore, in the absence of any evidence contrary to the view taken by the courts-below, it would not be appropriate to interfere with the findings arrived at by the revisional court. 10. In the result, the petition is dismissed for want of substance.