Anil Sharma vs Smt. Babli

This criminal revision has been filed under Section 397/401 of Cr.P.C. against the judgment dated 26.10.2015 passed by 1st Addl.Sessions Judge, Rajgarh (Biaora) in Cri.Appeal No.285/2014 filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act"), whereby learned Addl.Sessions Judge allowed the non-applicant No.1/complainant''s appeal and directed the applicant to pay Rs.7,000/- per month to nonapplicant No.1 as maintenance for her and her son Bheru.

Brief facts of the case are that non-applicant No.1 filed an application before JMFC, Jeerapur under Section 12 of the Act averring that she is legally wedded wife of applicant Dwarka Prasad. Her marriage was solemnized with Dwarka Prasad ten years before filing the application i.e. 25.5.2012. After marriage she lived with the applicant but behaviour of applicant Dwarka Prasad and non-applicants No.2 to 4 father, mother and grand-mother of the applicant was not good with her. They used to harass her and subjected her to cruelty and Applicant used to beat her. One and half year before filing the application applicant expelled her from her matrimonial house after beating. Since then she has been with her parents. So applicant and non-applicants No.2 to 4 be directed to give Rs.5,000/- per month as maintenance and Rs.5,000/- as compensation and Rs.5,000/- as expenses and also directed the applicant to give custody of minor son Bheru to her and also applicant be directed to pay Rs.5,000/- per month as maintenance for her minor son Bheru. On that complaint JMFC registered Cri.MJC No.46/2012 against applicant and nonapplicants No.2 to 4.

Applicant and non-applicants No.2 to 4 in their reply denied from all the allegations and averred that applicant and non-applicants No.2 to 4 never beated and harassed her. Non-applicant herself voluntarily left her matrimonial house and started living with her parents at Jeerapur and she also left her minor son Bheru at her matrimonial house. In a proceeding before SDM, Khilchipur non-applicant No.1 admitted that she did not want to live at her matrimonial house and also did not want to keep her son Bheru with her. Non applicant is a vegetable vendor and able to maintain herself. On the other hand applicant is unemployed and is not able to maintain her and prayed for rejection of application.

Learned trial Court after recording evidence of both the parties by order dated 4.9.2014 partly allowed the application and directed the applicant to give Rs 1000 per month to non applicant no.1 for maintenance of his son Behru but rejected non-applicant No.1''s prayer for getting maintenance from applicant observing that she voluntarily lived separately from the applicant without any sufficient reason. Being aggrieved by that order non applicant filed Cri.Appeal No.285/2014 before the Sessions Judge, which was disposed of by 1st ASJ, Rajgarh (Biaora), by order dated 26.10.2015 whereby he allowed the nonapplicant''s prayer and directed the applicant to pay Rs.7,000/- per month as maintenance to her . Being aggrieved from that order applicant filed this criminal revision.

Learned counsel for the applicant submitted that in a proceeding before SDM, Khilchipur non-applicant No.1 herself admitted that she did not want to live with applicant and also did not want to keep her son Bheru with her. From the statement of non-applicant it is clearly proved that non-applicant No.1 voluntarily lives separately from the applicant. Learned appellate Court without appreciating the evidence and the earlier statement of complainant Ex.D/2 recorded by SDM, Khilchipur wrongly held that applicant harassed non-applicant No.1 and so she had sufficient reason to live separately. Even otherwise learned appellate Court without appreciating the income of the applicant wrongly directed the applicant to pay Rs.7,000/- per month as maintenance to the non-applicant No.1. Applicant is a Labourer and only earns Rs.Four to Five thousand per month. So the maintenance amount awarded by the learned appellate Court is also on higher side.

On the other hand learned counsel for non-applicant No.1 submitted that non-applicant No.1 has sufficient reason to live separately from the applicant. The applicant has eight Bighas of agricultural land and able to maintain the non-applicant No.1 and refuses to do so without any sufficient reason. So learned appellate Court has not committed any mistake in directing the applicant to pay Rs.7,000/- per month to the non-applicant No.1 and prayed for rejection.

This court has gone through the record and as regards cruelty is concerned, non-applicant No.1 clearly deposed that applicant used to beat her due to which she lived separately. Her statement is also corroborated by the statement of Leelabai (PW-2). Although, applicant Dwarka Prasad deposed in his statement that non-applicant No.1 lived separately without any sufficient reason. He tried to keep her with him but the non-applicant No.1 denied to live with him. But had the applicant''s behaviour been good with her, she would not have left the house. Although, learned counsel for the applicant gave more attention to the statement Ex.D/2 recorded by SDM, Khilchipur wherein it is mentioned that non-applicant No.1 denied to keep her minor son Bheru with her and also denied to live with applicant. Although, in that

statement it is mentioned that non-applicant No.1 denied to keep her minor son Bheru with her and also denied to live with applicant but in the same statement it is also mentioned that behaviour of applicant was not good with the non-applicant No.1. So there is no reason to disbelieve non-applicant No1./complainant''s statement that behaviour of applicant is not good with her. So she does not want to live with the applicant. non-applicant No.1 also deposed that she is unable to maintain her. In these circumstances learned appellate Court did not commit any mistake in directing the applicant, who is husband of nonapplicant No1, to pay maintenance to the non-applicant No.1.

As far as amount of maintenance is concerned, although, nonapplicant No.1 deposed in her statement that applicant is working as Peon in Tehsil and is has seven to eight Bighas of agricultural land. But applicant in his statement clearly deposed that he works as Labourer and only earns Rs.100 ? 110 per day. The non-applicant has not challenged his statement in cross-examination and also not produced any evidence showing that applicant works in Tehsil as Peon. So there is no reason to disbelieve the applicant''s statement that he is a Labourer. Although, applicant deposed that he only earns Rs.100 ? 110 per day but these days minimum wages of daily wager is Rs.Seven to Eight thousand per month. So it is appropriate to assume the applicant''s income as Rs.8,000/- per month. But looking to applicant''s income, the amount of maintenance is Rs.7,000/- per month appears to be on higher side. So the petition is partly allowed and the applicant is directed to pay Rs.3,000/- per month as maintenance to non-applicant No.1 and Rs 1000 for her son Bheru instead of Rs.7,000/- per month as awarded by the learned appellate Court. All other conditions contained in the judgment of appellate Court shall remain intact.

Accordingly, this petition stands disposed of.