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2024 DIGILAW 873 (ALL)

Jamuna v. State Of U. P.

2024-03-20

SURENDRA SINGH I

body2024
JUDGMENT : By means of the instant criminal revision, revisionists have assailed the judgement and order dated 12.07.2022 passed by Principal Judge, Family Court, Lalitpur in Case No.49 of 2016 (Smt. Jamuna and others vs. Akhlesh), under Section 125 Cr.P.C. 2. By the impugned order, trial Court has rejected the application of the revisionists filed under Section 125 Cr.P.C. on the ground that revisionist no.1 along with her two daughters are residing with her mother-in-law and opposite party No.2 (husband) has given expenses to his wife and two minor children. 3. It has been submitted by the learned counsel for the revisionists that marriage of the revisionist No.1 (Smt. Jamuna) was solemnized with opposite party No.2 (Akhilesh) on 26.06.2007 according to Hindu Rites and Rituals. In the said marriage, parents of the revisionist No.1 had given sufficient dowry according to their capacity. The opposite party No.2 (husband) and in-laws of the revisionist No.1 were not satisfied with the dowry given to them in the marriage and they demanded Rs.1,50,000/-, but on non-fulfilment of the additional dowry, they mentally and physically tortured revisionist no. 1. Out of wedlock of the revisionist No.1 and opposite party No.2, two female children were born, namely, Km. Lali, aged about 12 years and Km. Kiriti, aged about 10 years. After the birth of two female children, husband and in-laws of the revisionist No.1 intensified their harassment for bringing of Rs.1,50,000/- as additional dowry and they also started beating and threatening for divorce. It has also been submitted that opposite party No.2 is a good confectioner and earns Rs.30,000/- per month by taking contract in marriages and other functions. It has also been submitted that revisionist No.1 has claimed Rs.15,000/- per month for herself and Rs.4000/- per month each for her two minor daughters as maintenance allowance. 4. Per contra, learned counsel for the opposite party No.2 has opposed the prayer of the revisionists and submitted that trial court has passed the impugned order on evidence on record and there is no illegality in the impugned order. 5. In the written statement opposite party No.2 (husband) has admitted his marriage with revisionist No.1 and also admitted that two daughters were born out of their wedlock, but he has denied that revisionist No.1 was harassed and pressurised to bring Rs. 1,50,000/- in dowry. 5. In the written statement opposite party No.2 (husband) has admitted his marriage with revisionist No.1 and also admitted that two daughters were born out of their wedlock, but he has denied that revisionist No.1 was harassed and pressurised to bring Rs. 1,50,000/- in dowry. Opposite party No.2 also denied that he is confectioner and earns Rs.30,000/- per month from his professional work. He also admitted that he is a labour and earns Rs.100-150/- per day as remuneration and revisionist No.1 earns about Rs.15,000/- per month from tailoring and embroidery and she is residing along with her two daughters in his house. 6. Heard Sri Jaysingh Yadav, learned counsel for the revisionists, learned A.G.A. for the State and Sri Ved Prakash Ojha, learned counsel for opposite party no.2. 7. Factual matrix of the case, in brief, is that marriage of the revisionist No.1 (Smt. Jamuna) was solemnized with opposite party No.2 (Akhilesh) on 26.06.2007 according to Hindu Rites and Rituals. In the said marriage, parents of the revisionist No.1 had given sufficient dowry according to their capacity. The opposite party No.2 (husband) and in-laws of the revisionist No.1 were not satisfied with the dowry given to them in the marriage and they demanded Rs.1,50,000/-, but on non-fulfilment of the additional dowry, they started torturing revisionist No.1 both mentally and physically. Out of wedlock of the revisionist No.1 and opposite party No.2, two female children were born, namely, Km. Lali and Km. Kiriti. After the birth of two female children, husband and in-law of the revisionist No.1 intensified their harassment for bringing of Rs.1,50,000/- as additional dowry and they also started beating and threatening for divorce. It has also been submitted that opposite party No.2 is a good confectioner and earns Rs.30,000/- per month by taking contract in marriages and other functions. 8. The Hon’ble Apex Court in the case of Rajnesh vs. Neha and Another, (2021) 2 SCC 324 has held that; “Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Article 15(3) of the Constitution of India provides that:- “Nothing in this article shall prevent the State from making any special provision for women and children. Article 15(3) of the Constitution of India provides that:- “Nothing in this article shall prevent the State from making any special provision for women and children. Article 15(3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.” 9. The trial Court while recording its finding on the issue no.2 that whether the revisionist No.1 is residing away from her husband due to reasonable cause, trial Court has relied on the averments made in the evidence of P.W.1 (revisionist No.1) that revisionist No.1 residing with her mother-in-law along with her two minor daughters. On this point, trial Court has held :- ^^bl laca/k esa i~jkfFkZ;k us crkSj ,-ih-MCyw-1 esa vius lk{k; esa dgk gS fd og vkt Hkh viuh lkl ds lkFk fuokl dj jgh gS rFkk mlds cPpksa Hkh mldh ds lkFk jg jgs gSA eq>s u>kbZ cktkj esa jkeLo:i ds ;gka ls jk'ku feyrk gSA bl i~jdkj Li"V gS fd ,-ih-MCyw-1 us foi{kh }kjk nkf[ky tokcnkok esa bl ckr dh iqf"V dh gS fd ^^i~jkfFkZ;k vkt Hkh esjs ?kj esa fuokl dj jgh gS vkSj ogha mldk [kpkZ mBk jgs gSA^^ i~jkfFkZ;k viuh lkl ds lkFk fuokl djrh gS vkSj cPps mlds lkFk fuokl djrs gSA bl ckr dks uk dsoy ,-ih-MCyw-1 us Lohdkj fd;k gS A cfYd] vks-ih-MCyw-1 o 2 us bl ckr dks viuh i~jfrijh{kk esa dgk gSA vks-ih-MCyw- 1 o 2 ls dh xbZ i~jfrijh{kk esa dksbZ Hkh ,slk i~j'u mHkj ugh vk;kA ftlls bl ckr dh iqf”V gks fd i~jkfFkZ;k vkt dh frfFk esa vius cPpksa lfgr llqjky esa lkl ds lkFk fuokl uk dj jgh gksA mijksDr ls Li"V gS fd i~jkfFkZ;k i`Fkd fuokl ugha dj jgh gSA^^ 10. The Hon’ble Apex Court in the case of Pyla Mutyalamma @ Satyavathi vs. Pyla Suri Demudu and Another: (2011) 12 SCC 189 has held that in the revision against the order passed under Section 125 Cr.P.C., the revisional Court is not required to enter into reappreciation of evidence recorded in the order granting maintenance. But where finding is a negative one, the High Court would entertain the revision revaluate the evidence and come to a conclusion whether the finding reached by the Magistrate are legally sustainable or not. But where finding is a negative one, the High Court would entertain the revision revaluate the evidence and come to a conclusion whether the finding reached by the Magistrate are legally sustainable or not. In case where the trial Court has rejected the claim of the wife, minor child and aged parents and dismissed their application under Section 125 Cr.P.C. for maintenance, the revisional Court has jurisdiction to consider the finding of facts recorded by the trial Court and come to a different conclusion for it. 11. Revisionist No.1 in her application under Section 125 Cr.P.C. has made averments that in her matrimonial home, her husband (opposite party No.2) and in-laws used to physically and mentally harass her for obtaining Rs.1,50,000/- as dowry so that her husband could establish his own hotel. She also deposed in her evidence that as she could not bring the additional dowry of Rs.1,50,000/- from her parents, the husband as well as in-laws were annoyed with her and started harassing her as well as her children by not proving sufficient food and cloths to them. She also deposed that her husband-opposite party No.2 solemnized marriage with one Shivani, D/o Ram Niswas and he has abandoned his child and he also threatened the revisionist-Smt. Jamuna for divorce. She also deposed that opposite party No.2 filed an application for divorce, which was dismissed. 12. P.W.1-Smt. Jamuna in her cross-examination stated that she was not residing with her in-laws and she is living separately in Talabpura on rent. She also stated that her daughters are studying in school and she bears the expenses of her daughters from the money given by her mother as well as her own earnings while doing domestic work. She has specifically stated that on 31.12.2015, her husband expelled her from his house. 13. From the perusal of the statement of P.W.1-Smt. Jamuna, it appears that her husband and in-laws used to physically or mentally harass her as she failed to bring additional dowry of Rs.1,50,000/- and her husband/opposite party No.2 expelled her from his house on 31.12.2015 and thereafter, she is residing separately. 13. From the perusal of the statement of P.W.1-Smt. Jamuna, it appears that her husband and in-laws used to physically or mentally harass her as she failed to bring additional dowry of Rs.1,50,000/- and her husband/opposite party No.2 expelled her from his house on 31.12.2015 and thereafter, she is residing separately. P.W.2-Gaurabai (mother of the revisionist No.1) has corroborated the statement of P.W.1 with the averments that due to failure of her daughter to bring additional dowry of Rs.1,50,000/- from her parents for opening a hotel for her husband, she was expelled from the house of her husband and her husband has not provided maintenance to his wife and daughters. P.W.2 in her cross-examination has deposed that her daughter earlier used to reside in Talabpura on rent and currently she is residing with her and she bears the expenses of maintenance of her daughters as well her grand daughters for education from her earnings by selling vegetables. 14. For careful perusal of the statement of witnesses and both the parties, it appears that Smt. Jamuna/revisionist No.1 was physically or mentally harassed for additional dowry and she was expelled from her matrimonial house in the year 2015 and she is living separately and bears the expenses of livelihood and her daughters as well as their educational expenses by the money given by her mother as well as her own meagre earnings from domestic work. 15. The trial Court has misinterpreted the deposition of P.W.1 that she is still living with her mother-in-law. From the perusal of the statement of P.W.1, it appears that earlier she used to live with her mother-in-law and later on, she is living separately on the rent in the same village and she bears the expenses of herself as well as her daughters from own earnings as well as money provided by her mother. 16. From the aforesaid discussion, it appears that due to sufficient reason revisionist No.1 is residing away from his husband. Through their deposition, P.W.1-Smt. Jamuna and P.W.2 Gaurabai have corroborated their pleadings regarding the profession and earnings of opposite party No.2 (husband), but they have not produced any oral or documentary evidences in support of their arguments. Under these facts and circumstances of the case, it cannot be concluded that opposite party No.2 is engaged in the profession of Halwai (sweet maker) and earns Rs.30,000/- per month. 17. Under these facts and circumstances of the case, it cannot be concluded that opposite party No.2 is engaged in the profession of Halwai (sweet maker) and earns Rs.30,000/- per month. 17. In the case of Chander Parkash vs. Shrimati Shila Rani: 1968 SCC Online Del 52, the Delhi High Court has held: “an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child.” 18. The Hon’ble Apex Court in Rajnesh vs. Neha (supra) has approved the above law laid down by the Delhi High Court. 19. In the present case, opposite party No.2 (husband) has not made any averments in his written statement or his deposition, as he, owing to special circumstances, he is not able to earn enough to discharge his legal obligation of maintaining his wife and two daughters. Therefore, it can be concluded that from the earnings of opposite party No.2 from doing manual labour, is earning enough to provide maintenance to his wife and daughters. 20. Taking cognizance of prevailing wages in the labour market, even an unskilled labourer earns about Rs.500/- per day, thus it can be concluded that opposite party No.2 may be earning about Rs.12,000/- to 14,000/- per month from his wages. Apart from his wife, two daughters who are aged about 12 years and 10 years presently are also to be provided maintenance, therefore, opposite party No.2 shall provide 1/3rd of his monthly income as maintenance to his wife and two daughters. Hence, it is justified from the evidence on record that the opposite party No.2 be directed to provide Rs.2000/- per month to his wife (revisionist No.1) and Rs.1,000/- per month each to his daughters (revisionist Nos.2 an 3), total Rs.4000/- per month as maintenance allowance from the date of filing of application under Section 125 Cr.P.C. as has been mandated by the Hon’ble Supreme Court in the case of Rajnesh vs. Neha (supra). 21. 21. In view of the aforesaid factual and legal aspect, I am of the view that the order impugned dated 12.07.2022 is erroneous and cannot survive in the eyes of law, therefore, I set-aside the impugned order for the aforesaid reasons. 22. It is provided that revisionist No.1 will be entitled for Rs.2,000/- per month as maintenance allowance till her remarriage along with Rs.1000/- per month to revisionist Nos.2 and 3 (minor daughter of the opposite party No.2) each till they attain the age of majority. 23. Thus, opposite party No.2 shall be bound to provide maintenance allowance @ of Rs.2000/- per month to his wife (revisionist No.1) until her remarriage and Rs.1000/-each for his minor daughters (revisionist Nos.2 and 3) till they attain the age of majority, total Rs.4,000/- per month shall be given to the revisionists from the date of application. The arrears of maintenance allowance shall be paid by the opposite party No.2 in four equal amounts at the gap of four months. The monthly interim maintenance shall be paid regularly till 7th day of each month. The amount of maintenance allowance already paid shall be adjusted against this amount. 24. The present criminal revision is allowed in terms of above mentioned conditions. 25. The copy of the order be sent to the trial Court concerned forthwith for necessary compliance.