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2016 DIGILAW 2512 (HP)

Bhag Singh S/o. Sh. Mahantu Ram v. Lalita Devi W/o. Sh. Bhag Singh

2016-11-29

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure against order dated 24.10.2013 passed by learned Additional Sessions Judge Ghumarwin Distt. Bilaspur (H.P.) whereby learned Additional Sessions Judge Ghumarwin Distt. Bilaspur (H.P.) affirmed the order of learned Trial Court passed under section 125 Code of Criminal Procedure 1973. Brief facts of case: 2. Smt. Lalita Devi and her minor son namely Punit alias Akshu aged 2 years filed maintenance allowance petition under section 125 Code of Criminal Procedure 1973 pleaded therein that Smt. Lalita Devi is legally wedded wife of Sh. Bhag Singh. It is pleaded that marriage was solemnized on dated 06.03.2006 as per Hindu rites and customs. It is further pleaded that minor Punit alias Akshu was born out of the wedlock on dated 11.01.2007. It is further pleaded that relations inter se parties remained cordial for one year and thereafter Sh. Bhag Singh started ill-treating Smt. Lalita Devi and also beaten Smt. Lalita Devi and also abused her. It is further pleaded that relatives of Sh. Bhag Singh also beaten Smt. Lalita Devi. It is further pleaded that Sh. Bhag Singh also demanded Rs.30,000/- as dowry and when Smt. Lalita Devi told that she was not able to fulfill his demand then Sh. Bhag Singh started maltreating and beating Smt. Lalita Devi. It is further pleaded that on 16.07.2008 Sh. Bhag Singh refused to maintain Smt. Lalita Devi and her minor son and thrown out Smt. Lalita Devi and her minor son from matrimonial house. It is further pleaded that Sh. Bhag Singh did not provide any food and clothes to Smt. Lalita Devi and her minor son Punit alias Akshu. It is further pleaded that relatives of Smt. Lalita Devi requested Sh. Bhag Singh to provide food and clothing to Smt. Lalita Devi and her minor son but Sh. Bhag Singh abused the relatives of Smt. Lalita Devi. It is further pleaded that matter was compromised at the intervention of Gram Panchayat. It is further pleaded that on dated 14.01.2008 Sh. Bhag Singh again beaten Smt. Lalita Devi and matter was reported in police station. It is further pleaded that matter was again compromised before the police officials but again Smt. Lalita Devi was forced to leave her matrimonial house on dated 16.08.2008. It is further pleaded that on dated 14.01.2008 Sh. Bhag Singh again beaten Smt. Lalita Devi and matter was reported in police station. It is further pleaded that matter was again compromised before the police officials but again Smt. Lalita Devi was forced to leave her matrimonial house on dated 16.08.2008. It is further pleaded that Smt. Lalita Devi and her minor son have no sufficient source of income to maintain themselves. It is further pleaded that Sh. Bhag Singh is posted as Postman in post office and earning Rs.12,000/- per month from all sources. Maintenance allowance to the tune of Rs.5,000/- per month sought. 3. Per contra response filed on behalf of Sh. Bhag Singh pleaded therein that present application is not maintainable. It is denied that Smt. Lalita Devi has left her matrimonial house alongwith her minor son voluntarily without any reasonable cause. It is pleaded that Sh. Bhag Singh did not demand any dowry as alleged. It is pleaded that Smt. Lalita Devi left her matrimonial house without consent of Sh. Bhag Singh. It is further pleaded that Sh. Bhag Singh requested Smt. Lalita Devi to go to her matrimonial house but Smt. Lalita Devi refused to live in her matrimonial house. It is further pleaded that Smt. Lalita Devi and her minor son are not entitled for any maintenance allowance. Prayer for dismissal of maintenance petition sought. Smt. Lalita Devi filed rejoinder and reasserted the allegations mentioned in maintenance petition. 4. Learned Trial Court granted maintenance allowance to the tune of Rs.1200/- per month to each of the petitioner w.e.f. 31.01.2012. Feeling aggrieved against the order of learned Trial Court Sh. Bhag Singh filed revision petition under section 397 Cr.PC before learned Additional Sessions Judge Ghumarwin Distt. Bilaspur (H.P.). Learned Additional Sessions Judge Ghumarwin Distt. Bilaspur (H.P.) dismissed the revision petition and affirmed the order of learned Trial Court. Feeling aggrieved against the order of learned Additional Sessions Judge Ghumarwin Distt. Bilaspur (H.P.) Sh. Bhag Singh filed present petition under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure. 5. Court heard learned Advocates appearing on behalf of parties and Court also perused the entire records carefully. 6. Feeling aggrieved against the order of learned Additional Sessions Judge Ghumarwin Distt. Bilaspur (H.P.) Sh. Bhag Singh filed present petition under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure. 5. Court heard learned Advocates appearing on behalf of parties and Court also perused the entire records carefully. 6. Following points arises for determination in the present petition: (1) Whether petition filed under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure is liable to be accepted as mentioned in memorandum of grounds of petition? (2) Final Order. Findings upon point No.1 with reasons: 7. PW-1 Smt. Lalita Devi has stated that Sh.Bhag Singh is her husband. She has stated that marriage was solemnized inter se parties on 06.03.2006 as per Hindu rites and customs. She has stated that minor Punit alias Akshu was born on 11.01.2007. She has stated that she was kept properly for one year and thereafter Sh. Bhag Singh started abusing her and also started beating her. She has stated that relatives of Sh. Bhag Singh also abused her. She has stated that on dated 16.07.2008 she was beaten by Sh. Bhag Singh and her sister. She has further stated that Sh. Bhag Singh refused to give maintenance allowance to her and her minor son. She has further stated that matter was also reported in Panchayat and matter was also reported in police. She has further stated that there is no source of income to maintain herself and her minor son. She has further stated that Sh. Bhag Singh is posted in post and telegraph department. She has further stated that monthly income of Sh. Bhag Singh is Rs.12,000/-. She has further stated that Rs.5,000/- per month as maintenance allowance be granted to her and her minor son. She has denied suggestion that Sh. Bhag Singh did not beat her. She has denied suggestion that Sh. Bhag Singh did not refuse to maintain her and her minor son. 8. PW-2 Smt. Suman Kumari has stated that parties are known to her. She has stated that she is Pradhan of Gram Panchayat. She has stated that in Panchayat brother of Sh. Bhag Singh became angry and started abusing. She has further stated that Sh. Bhag Singh also telephoned her husband and used abusive language. 8. PW-2 Smt. Suman Kumari has stated that parties are known to her. She has stated that she is Pradhan of Gram Panchayat. She has stated that in Panchayat brother of Sh. Bhag Singh became angry and started abusing. She has further stated that Sh. Bhag Singh also telephoned her husband and used abusive language. She has further stated that Smt. Lalita Devi and her minor son have no source of income to maintain themselves. She has denied suggestion that she is deposing falsely. 9. PW-3 Sh. Jai Singh has stated that he is posted as Chowkidar in Panchayat. He has stated that parties are known to him. He has stated that quarrel took place inter se parties after one year of marriage. He has stated that it came to his knowledge that Sh. Bhag Singh used to beat his wife after consuming liquor. He has stated that Smt. Lalita Devi is residing in her parents house. He has stated that Smt. Lalita Devi has no source of income to maintain herself and her minor son. He has stated that Smt. Lalita Devi was also beaten in his presence. 10. Sh. Bhag Singh petitioner did not appear in witness box for the purpose of cross-examination and did not adduce any rebuttal evidence. 11. Submission of learned Advocate appearing on behalf of petitioner that Smt. Lalita Devi left her matrimonial house at her own without consent of petitioner and on this ground present petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Sh. Bhag Singh petitioner did not appear in witness box for the purpose of cross-examination. Hence adverse inference under Section 114 (g) of Indian Evidence Act 1872 is drawn against petitioner. Plea of petitioner that Smt. Lalita Devi has left her matrimonial house without any reasonable cause is defeated on the concept of ipse dixit (An assertion made without proof). See AIR 1999 Apex Court 1441 Vidyadhar Vs. Mankikrao & Another. Also see AIR 1994 Apex Court 1341 Ishwarbhai C. Patel alias Bachu Bhai Patel Vs. Harihar Behera and another. 12. Submission of learned Advocate appearing on behalf of petitioner that principle of natural justice violated by learned Additional Sessions Judge in the present case and reasonable opportunity was not granted to Sh. Bhag Singh to lead evidence in the present case is rejected being devoid of any force for reasons hereinafter mentioned. Harihar Behera and another. 12. Submission of learned Advocate appearing on behalf of petitioner that principle of natural justice violated by learned Additional Sessions Judge in the present case and reasonable opportunity was not granted to Sh. Bhag Singh to lead evidence in the present case is rejected being devoid of any force for reasons hereinafter mentioned. Learned Trial Court listed the case for evidence of Sh.Bhag Singh on 7.5.2011. On 7.5.2011 Sh.Bhag Singh did not produce any evidence. Thereafter learned Trial Court listed the case for evidence of Sh.Bhag Singh on 1.7.2011, 9.8.2011 and 26.11.2011. On 26.11.2011 Sh.Bhag Singh did not appear in the Court and he was proceeded ex-parte by learned Trial Court. It is held that sufficient opportunities were granted by learned Trial Court to Sh.Bhag Singh to lead evidence in rebuttal. It is held that despite sufficient opportunities granted by learned Trial Court Sh. Bhag Singh did not lead any rebuttal evidence. 13. Submission of learned Advocate appearing on behalf of petitioner that learned Trial Court did not consider actual income of petitioner and on this ground present petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that Sh. Bhag Singh is posted in post and telegraph department. Smt. Lalita Devi has specifically stated when she appeared in witness box that monthly income of Sh. Bhag Singh is Rs.12,000/- per month. Sh. Bhag Singh did not adduce rebuttal evidence. Even Sh. Bhag Singh did not appear in witness box for the purpose of cross-examination in the present case. Testimony of Smt. Lalita Devi relating to income of Sh. Bhag Singh remains unrebutted on record. Hence it is held that learned Trial Court did not commit any illegality by way of assessing income of Sh. Bhag Singh in the present case. 14. Submission of learned Advocate appearing on behalf of petitioner that willful neglect on the part of husband is not proved in the present case and on this ground present petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. As per testimonies of PW-1 Smt. Lalita Devi, PW-2 Smt. Suman Kumari Pradhan Gram Panchayat and PW-3 Sh. Jai Singh it is proved on record that Sh. Bhag Singh beaten Smt. Lalita Devi in her matrimonial house and also used abusive language. As per testimonies of PW-1 Smt. Lalita Devi, PW-2 Smt. Suman Kumari Pradhan Gram Panchayat and PW-3 Sh. Jai Singh it is proved on record that Sh. Bhag Singh beaten Smt. Lalita Devi in her matrimonial house and also used abusive language. Testimonies of PW-1, PW-2 and PW-3 are trustworthy, reliable and inspire confidence of the Court. There is no reason to disbelieve the testimonies of PW-1, PW-2 and PW-3. There is no evidence on record in order to prove that PW-2 and PW-3 have hostile animus against Sh. Bhag Singh at any point of time. Sh. Bhag Singh petitioner did not appear in witness box personally for the purpose of cross-examination despite opportunities granted by learned Trial Court and Sh. Bhag Singh did not lead any rebuttal evidence. Testimonies of PW-1 Smt. Lalita Devi, PW-2 Smt. Suman Kumari PW-3 Sh. Jai Singh remain unrebutted on record. It is well settled law that statement of wife that she is unable to maintain herself unless rebutted would be enough to grant maintenance allowance. It is well settled law that onus is upon husband to prove otherwise. It is also well settled law that maintenance cannot be denied to wife on the ground that she is able bodied person. It is also well settled law that minor son is legally entitled for maintenance from his father. See AIR 1999 (6) SCC 326 Rajathi Vs. C.Ganesan. See 1981 Criminal Law Journal 210 Bimal Vs. Sukumar Anna Patil and another. Object of section 125 Code of Criminal Procedure 1973 is to protect women and children from vagrancy and destitution. See AIR 1989 SC 3348 Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit. In view of the above stated facts and case law cited supra point No.1 is answered in negative. Point No.2 (Final Order). 15. In view of findings upon point No.1 present petition filed under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure is dismissed. File (s) of learned Trial Court and learned Additional Sessions Judge alongwith certified copy of the order be sent back forthwith. Cr.MMO No. 144/2014 is disposed of. Pending application (s) if any also disposed of.