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Madhya Pradesh High Court · body

2016 DIGILAW 324 (MP)

Ragini Kokte v. Ajay Kokte

2016-04-22

ATUL SREEDHARAN

body2016
JUDGMENT : Atul Sreedharan, J. 1. The instant criminal revision has been filed by the petitioner Smt. Ragini Kokte against the order dated 21.1.2011 passed by the Principal Judge, Family Court, Tikamgarh in M.Cr.C. No.124/10 by which the learned trial Court was pleased to dismiss the application under Section 125 of Cr.P.C. filed by the petitioner herein. 2. The learned counsel for the petitioner has assailed the order passed by the trial Court on the ground that the application under Section 125 of Cr.P.C. was dismissed solely on the ground that the petitioner was unable to make out a legitimate ground for staying separately from her husband. Learned counsel for the petitioner has lead me through the trial Court’s statement of PW-1 Ragini wherein she states in para 1 that her marriage took place with the respondent as per Hindu rites and rituals on 21.4.2003. She has further stated that at the time of marriage, Rs. 75,000/- in cash, one bed, almirah and cooler was given by way of dowry and that about Rs. 2.5 Lacs was incurred by the father towards the marriage expenses. She states that immediately after the marriage, when she went to her matrimonial home, her mother-in-law, sister-in-law, brother-in-law and father-in-law said that her father had not given any thing by way of dowry and so she should get Rs. 50,000/- in cash, colour television and then come otherwise they will not keep her. She has also stated that in the very first month, her in-laws had beaten her and also were demanding more dowry. She also states that her brother and sister-in-law had come to take her away and in front of them also, her in-laws had abused her and beaten her. In fact, all those statements made by the petitioner in her examination-in-chief were taken note of by the learned trial Court which has extensively reproduced her examination and cross-examination in para 10 of its judgment wherein, it has reproduced all those instances of physical torture and beatings inflicted upon the petitioner. In fact, all those statements made by the petitioner in her examination-in-chief were taken note of by the learned trial Court which has extensively reproduced her examination and cross-examination in para 10 of its judgment wherein, it has reproduced all those instances of physical torture and beatings inflicted upon the petitioner. Thereafter, in para 11 of the impugned order, the learned trial Court has referred to the statement of the respondent and has relied upon those portions of his evidence where the respondent has stated that the petitioner was in the habit of going to her matrimonial home very often and that in the first year of marriage, she had to her matrimonial home about 8 to 10 times. The learned trial Court has also relied upon the statement of the respondent wherein it has been stated that the petitioner had gone of her own sweet will to her matrimonial home and the allegations levelled upon the petitioner to the effect of physical beatings and torture were denied by the respondent. The learned trial Court has also reproduced that portion of the statement of the respondent in cross-examination where he has denied the dowry of Rs. 75,000/- being given at the time of marriage but has otherwise accepted of having received a motorcycle, cooler and wooden box, bed, sofa-set and 7 pieces of crockery at the time of marriage. The learned trial Court in para 13 of the impugned order has taken note of the petitioner’s statement that she was beaten for the second time at her matrimonial home at which point, the ornaments were removed from her and she was asked for more dowry. It is also recorded in its order that the petitioner in her cross-examination has reiterated the infliction of torture upon her after marriage. 3. I have perused the court statements of the wife Petitioner and the Respondent in detail. In her examination in Chief, the Petitioner has stated clearly in paragraph one that a dowry of Rs. 75,000/- cash along with bed, almirah, vanity case and air cooler, totaling to about two to two and half lakhs was given to the Respondent and his family. In the same paragraph, the Petitioner further states that from the very beginning she was beaten by the Respondent and his family members who included his parents, sister and elder brother. 75,000/- cash along with bed, almirah, vanity case and air cooler, totaling to about two to two and half lakhs was given to the Respondent and his family. In the same paragraph, the Petitioner further states that from the very beginning she was beaten by the Respondent and his family members who included his parents, sister and elder brother. She states that her mother in law, father in law, sister in law and brother in law demanded fifty thousand rupees in cash and a colour television from her. Further, when the Petitioner’s brother and sister in law came to take the Petitioner to her parental home, the Respondent and his family members beat the Petitioner and abused her in front of the Petitioner’s brother and sister in law. When she returned from her parental home to her marital home, she states that the beatings continued and the Petitioner’s in laws took away the Petitioner’s jewellery. After that when she went back to her parental home, she states that she had made a complaint before the police there who referred her case to the mediation centre where the Respondent and his parents were also called and in the mediation, the Respondent told the police that they would look after the Petitioner well henceforth. Upon such assurance, the Petitioner is said to have returned to her matrimonial home but thereafter the Respondent and his family members started beating her again and reiterated their demand for fifty thousand rupees in cash as dowry. Unable to bear the same she informed her brother who came there along with her father and took her away to her parental home. She has stated that the Respondent is a computer operator with the MPEB and that he draws a monthly salary of eight thousand rupees. Besides, he is also giving loan on interest and earning there from too. 4. In cross examination, the main contradictions appear in relations to dates and time. No contradiction has been brought out on the material particulars relating to acts of cruelty perpetrated upon the Petitioner by the Respondent. Here it would be relevant to mention that to a specific query by the Trial Court as to why the Petitioner did not want to stay with the Respondent, her reply was that the Respondent beats her and demands dowry of rupees fifty thousand. 5. Here it would be relevant to mention that to a specific query by the Trial Court as to why the Petitioner did not want to stay with the Respondent, her reply was that the Respondent beats her and demands dowry of rupees fifty thousand. 5. The Respondent has of course denied all the allegations of cruelty and dowry. The Respondent has specifically denied the receipt of rupees seventy five thousand in cash at the time of marriage. The Respondent however admits that he received a motorcycle, cooler, bed, sofa set and seven vessels at the time of marriage. He denies demanding a colour television and rupees fifty thousand and also denies beating the Petitioner. 6. However, the learned trial Court has relied upon the aberrations in her cross-examination, which to the considered opinion of this Court is not of such quality or extent so as to disbelieve the petitioner on the material particulars relating to beatings that were inflicted upon her. On the basis of said aberrations, the learned trial Court was pleased to hold that the issue relating to continued demand for dowry and physical and mental torture on the petitioner was not proved. It was also held that the petitioner was staying away from the society of the respondent without adequate cause. 7. As regards the ability of the petitioner to sustain and to survive of her own, the trial Court in para 23 of its order has held that the petitioner does not have any independent source of income and that she was unable to maintain herself. Thereafter, in para 26 of the impugned order, the trial Court has held that if the petitioner was held to be entitled for maintenance, then an amount of Rs. 2000/- per month would have been payable to her. However, as the petitioner has not been able to prove that had adequate cause to stay separately from her husband, she was not entitled to maintenance and saying so, the learned trial Court was pleased to dismiss her application under Section 125 of the Cr.P.C. 8. Learned counsel for the respondent has vociferously defended the finding of the trial Court and stated that the said order is right both on law and in facts. Learned counsel for the respondent has vociferously defended the finding of the trial Court and stated that the said order is right both on law and in facts. Learned counsel for the respondent has also drawn my attention to the statement of the respondent before the trial Court where the respondent has stated that the petitioner is staying away from him without adequate cause. 9. Having gone through the impugned order of the case and material on record, I am of the opinion that the learned trial Court has erroneously applied the standard of proof in a criminal case that may have been applicable if, on the allegations of cruelty, an offence U/s.498-A of I.P.C. was being decided against the respondent. The trial Court has failed to appreciate that though the proceeding was under the Code of Criminal Procedure, an application U/s.125 of Cr.P.C. is essentially in the nature of a civil proceeding and the standard of proof that ought to have been applied was of preponderance of probabilities and not one of beyond reasonable doubt. The evidence of the petitioner which has extensively been reproduced in the order of the trial Court would go to show that physical and mental torture was being inflicted upon the petitioner from the very early days of the marriage itself. The minor aberrations which arose in the cross-examination are but natural and were not of such a nature that it would render her statement before the Trial Court highly improbable. 10. The Trial Court was only to determine if (a) The applicant was unable to maintain herself and (b) whether there was reasonable cause for the applicant to stay away from the society of her husband. As far as the ability of the Petitioner to maintain herself was concerned, the Trial Court arrived at the finding in paragraph 23 that the Petitioner did not have the means to maintain herself. However, it appears that the Trial Court applied the standard of beyond reasonable doubt while assessing the evidence relating to cruelty inflicted upon the Petitioner and thereafter reached the finding that cruelty was not proved against the Respondent and therefore, the Petitioner did not have reasonable cause to live separately from her husband. 11. However, it appears that the Trial Court applied the standard of beyond reasonable doubt while assessing the evidence relating to cruelty inflicted upon the Petitioner and thereafter reached the finding that cruelty was not proved against the Respondent and therefore, the Petitioner did not have reasonable cause to live separately from her husband. 11. A case under section 125 Cr.P.C is not in the nature of a Criminal Case and instead it is a provision to ensure that old parents, minor children, daughters till they are married off and wives are not exposed to vagrancy. Unlike a trial to determine the guilt of an accused for perpetrating cruelty on his wife under section 498-A IPC, a proceeding under 125 Cr.P.C is only to examine if the cruelty is of such nature that it would make it impossible for a wife to remain in cohabitation with her husband without the risk of suffering mental or physical torture. The proceedings are not to determine the guilt of an accused or punish the offender for such cruelty but only to make such a person liable to maintain his wife while she stays separately from him on account of his actions or the actions of such others related to the husband which create an environment in the matrimonial home which cannot be conducive for harmonious cohabitation. Looking into the nature of the evidence recorded by the Trial Court, I am of the considered opinion that the instances of cruelty brought out by the wife in her statement before court reasonably reveal that the environment existing in the matrimonial home was not conducive for a harmonious relationship between the Petitioner and the Respondent and thus, the Petitioner had made out an adequate cause to live separately from the Respondent thus making the Respondent liable under section 125 Cr.P.C to maintain the Petitioner. 12. Under the circumstance, I am inclined to allow this petition filed by the petitioner and keeping in view the finding of the trial Court itself that the petitioner would have been eligible for maintenance of Rs. 2000/- per month had she succeeded in establishing that she was staying separately from her husband on account of physical and mental torture and keeping in view that the said order was passed over five years back, I direct the respondent to pay the petitioner a sum of Rs. 2000/- per month had she succeeded in establishing that she was staying separately from her husband on account of physical and mental torture and keeping in view that the said order was passed over five years back, I direct the respondent to pay the petitioner a sum of Rs. 3000/- per month towards her maintenance from the date of receipt of certified copy of the order passed today. 13. With the aforesaid directions, the instant revision stands disposed of. 14. C.C. as per rules.