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2017 DIGILAW 847 (HP)

Usha Devi v. Vinod Kumar

2017-07-25

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Instant criminal miscellaneous petition under Section 482 Cr.PC is directed against the order dated 15.09.2014 passed by the learned Sessions Judge, Una Distt. Una (H.P.) in Criminal Revision No.12-X/13, partly modifying the order dated 27.09.2013 passed by the learned Judicial Magistrate Ist Class, Court No.1, Una, whereby the learned Trial Court had awarded maintenance amounting to Rs.2000/- per month in favour of petitioner as well as her daughter, namely, Sonu Devi. 2. Briefly stated the facts as emerged from the record are that the petitioner alongwith her daughter, namely, Sonu Devi preferred an application under section 125 Cr.PC in the Court of learned Judicial Magistrate Ist Class, Court No.1, Una, seeking therein maintenance allowance amounting to Rs.5000/- and Rs.3000/- respectively per month. In the aforesaid application, petitioner claimed that her marriage was solemnized with respondent No.1 on 22.09.2009 and an agreement was also executed, whereby respondent No.1 adopted respondent No.2 as daughter and agreed to provide maintenance to them. It also emerged from the record that previous marriage of petitioner with one Manohar Lal was dissolved by a decree of mutual divorce by learned District Judge, Una on 21.04.2009. Petitioner specifically contended before the Court below that the respondent provided all basic necessities of life to petitioner as well as her daughter for 1½ year after marriage, but thereafter he started torturing her in connivance with his brothers and sisters and compelled her to leave the matrimonial house. Petitioner further claimed in the application as referred above that the matter was also reported to the Panchayat, but no effective steps were taken and, as such, she was compelled to file application under section 125 Cr.PC. In the said application, petitioner specifically contended that the respondent No.1 is a regular employee of HPPWD and drawing salary of Rs.13000/- cash in hand besides other deductions, whereas she has no source of income to maintain herself as well as her daughter and, as such, maintenance of Rs.5000/- and Rs.2000/- respectively per month be awarded in favour of the petitioner as well as her daughter Sonu Devi. Learned Trial Court on the basis of material adduced on record by the respective parties held the petitioner and her daughter entitled for maintenance of Rs.2000/- per month each from the date of passing of order. 3. Learned Trial Court on the basis of material adduced on record by the respective parties held the petitioner and her daughter entitled for maintenance of Rs.2000/- per month each from the date of passing of order. 3. Being aggrieved and dissatisfied with the aforesaid order passed by learned Judicial Magistrate Ist Class, Court No.1, Una, respondent No.1 preferred revision petition under Section 397 Cr.PC in the Court of learned Sessions Judge, Una Distt. Una (H.P.), which came to be registered as Criminal Revision No.12-X/13. Learned Sessions Judge vide order dated 15.09.2014 partly allowed the appeal and set-aside the impugned order passed by the learned Trial Court to the extent of granting maintenance @ Rs.2000/- per month to the petitioner, namely, Usha Devi. However, the fact remains that maintenance amounting to Rs.2000/- per month awarded in favour of petitioner’s daughter was upheld by the learned Sessions Judge. 4. In the aforesaid background, petitioner has approached this Court by way of instant proceedings, praying therein for restoration of order dated 27.09.2013 passed by learned Judicial Magistrate Ist Class, Court No.1, Una after setting aside the order passed by learned Sessions Judge in criminal revision having been preferred by respondent No.1. 5. I have heard learned counsel representing the parties and also gone through the records carefully. 6. Ms. Seema Guleria, learned counsel representing the petitioner while inviting attention of this Court to the order dated 15.09.2014 passed by learned Sessions Judge vehemently contended that the same is not sustainable in the eyes of law, as the same is not based on proper appreciation of evidence, which otherwise clearly proves on record that the petitioner was compelled to leave her matrimonial house by her husband, namely, Vinod Kumar as well as his other family members and, as such, there was no occasion for the learned Court below to modify the order of maintenance passed by learned Trial Court. 7. While ascertaining the genuineness and correctness of the aforesaid submission having been made by the learned counsel representing the petitioner, this Court carefully perused the pleadings as well as evidence adduced on record by the respective parties, perusal thereof certainly not suggests that there is misreading, misrepresentation and misconstruction of evidence adduced on record by the Court below while partly allowing the appeal having been preferred by respondent No.1. To the contrary, this Court finds from careful perusal of evidence available on record that the petitioner herself withdrew from the company of respondent No.1 without any reasonable cause and there is no evidence led on record by the petitioner suggestive of the fact that respondent No.1 refused to maintain her or neglected her and there are reasonable and justifiable reasons for the petitioner not to live in her matrimonial house. 8. Mr. N. K. Thakur, learned senior counsel representing the respondent No.1 while inviting attention of this Court to the pleadings adduced on record by the petitioner in the application under section 125 Cr.PC strenuously argued that it is admitted case of the petitioner that she was properly maintained by her husband for about 1½ years and during that period, he never refused to maintain her nor any complaint in this regard was ever made by the petitioner either to the Gram Panchayat or to the police. 9. It clearly emerged from the pleadings adduced on record by respondent No.1 that there is no dispute with regard to relationship, if any, of the petitioner and the respondent, who are legally wedded to each other. Similarly, there appears to be no dispute at the time of solemnization of marriage between petitioner and respondent No.1, respondent No.1 had agreed to maintain her daughter. Petitioner while making statement before the learned Trial Court stated that she was married to respondent on 21.09.2009 as per Hindu customs in village Ropa and respondent Vinod Kumar also adopted Sonu Devi as his daughter and agreed to maintain her. If the statement having been made by the petitioner is read in its entirety, there appears to be no allegation, if any, against respondent No.1 that maltreatment, if any, meted out to her during the period she remained at her matrimonial house. Rather there is allegation against the elder brother and Bhabi of respondent No.1, who as per the petitioner gave beatings to her during her stay at the matrimonial house. It has also come in her statement that she made complaint to the Panchayat, but no action was taken by the Panchayat. Most importantly, it has come in her statement that she does not want to live in her matrimonial house as she apprehends danger to her life, but unfortunately, there is no evidence led on record in this regard to substantiate the aforesaid apprehension. Most importantly, it has come in her statement that she does not want to live in her matrimonial house as she apprehends danger to her life, but unfortunately, there is no evidence led on record in this regard to substantiate the aforesaid apprehension. Though, there is allegation in the application having been made under section 125 Cr.PC as well as in the statement having been made by her before the Court that she was being maltreated by brothers and sisters of respondent No.1, but in her statement before the Court, she categorically admitted that her husband has four brothers and two sisters and all are residing separately and having separate kitchens. 10. As has been taken note above, there is no specific allegation of maltreatment, if any, by her husband in the application under section 125 Cr.PC. Interestingly, the petitioner while deposing before the Court stated that respondent No.1 started giving beatings to her after 15 days of her marriage and in this regard, she made complaint to the Panchayat twice and the Panchayat also visited the spot, but neither there is any evidence available on record to substantiate the factum with regard to visit of Panchayat to the matrimonial house of the petitioner nor there is any record pertaining to medical examination, if any, got conducted by the petitioner after being maltreated by the respondent. It has specifically come in her statement that she has left her matrimonial house about two years back and while leaving her matrimonial house, she brought records regarding LIC, RD and Bank pass book etc. She categorically admitted before the Court below that she never made any application before the Panchayat or before the police. 11. After having carefully perused the pleadings as well as evidence adduced on record by the petitioner, this Court agrees with the statement having been made by respondent No.1 that the petitioner was not compelled to leave her matrimonial house, rather, there is ample evidence available on record suggestive of the fact that the petitioner herself left her matrimonial house about two years back prior to filing of application under section 125 Cr.PC. Leaving everything aside, this Court finds no explanation on the record that how the petitioner was able to maintain herself during aforesaid period of two years without there being any assistance on the part of respondent No.1. Leaving everything aside, this Court finds no explanation on the record that how the petitioner was able to maintain herself during aforesaid period of two years without there being any assistance on the part of respondent No.1. True it is that proceedings under section 125 Cr.PC specifically provides for speedy and summary remedy, but essential conditions for granting maintenance under section 125 Cr.PC are that the person against whom maintenance is being claimed has refused to maintain his wife or children, but as has been taken note above, there is no muchless convincing, cogent evidence adduced on record by the petitioner suggestive of the fact that respondent No.1 has neglected or refused to maintain the petitioner. 12. From the close scrutiny of the statement made by the petitioner before the Court below, this Court finds that the petitioner herself abandoned the company of respondent No.1, who was ready to maintain her. Even it emerged from the record that the petitioner while deposing before the Court categorically stated that she does not intend to join the company of respondent No.1, whereas respondent No.1 while making statement before the Court below categorically stated that he is ready to take the petitioner to his house. Similarly, this Court was unable to lay its hand to the evidence, if any, adduced on record by the petitioner, from where it could be inferred that she was maltreated and was also given beatings either by her husband or by her in-laws. Bald allegations with regard to alleged maltreatment could not be lend credence, if any, by the Court below without there being corroborative evidence, if any, adduced on record by the petitioner. It also emerged from the record that though there is no attempt, if any, on behalf of the petitioner to place on record complaint allegedly having been made by her to the Panchayat, but respondent No.1 after having taken permission under Section 311 Cr.PC placed on record complaint allegedly having been filed by the petitioner Ext.PW-1/C, Ext.PW- 1/D, perusal whereof suggests that there is no allegation, if any, of maltreatment against her husband, rather the allegation was against her Jethani, namely, Mangla. Perusal of decision as contained in Ext.PW-1/D suggests that the Panchayat advised both the parties to maintain good and cordial relations and not to abuse each other in future. Perusal of decision as contained in Ext.PW-1/D suggests that the Panchayat advised both the parties to maintain good and cordial relations and not to abuse each other in future. Similarly, perusal of complaint Ext.PW-1/C made by the petitioner before Panchayat on 16.08.2011 suggests that complaint was filed jointly by the petitioner as well as her husband against the brothers, wife and sisters of respondent No.1. 13. While claiming maintenance under Section 125 Cr.PC, claimants be it wife or legitimate or illegitimate minor child, whether married or not, are required to prove that they are being not maintained and have been neglected. Magistrate concerned only on the basis of proof of neglect or refusal to maintain can order for maintenance under Section 125 Cr.PC. At this stage, it would be apt to take note of the provisions contained in Section 125 Cr.PC: “125. Order for maintenance of wives, children and parents :- (1) If any person having sufficient means neglects or refuses to maintain.- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub-Section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.”. 14. After having bestowed my thoughtful consideration to the material available on record, I see no illegality in the findings returned by the learned Sessions Judge that the petitioner herself abandoned her matrimonial house and she was never compelled by respondent No.1 to leave her matrimonial house. Since the petitioner was unable to prove on record that she was compelled to leave her matrimonial house, learned Court below rightly held petitioner not entitled for maintenance as was awarded by the learned Judicial Magistrate Ist Class, Court No.1, Una. 15. Consequently, in view of detailed discussion, this Court see no reason to interfere with the order passed by learned Sessions Judge and, as such, the same is upheld. 16. Present petition is dismissed being devoid of any merit.