Arvind Kumar Mishra vs State of U.P.

Yogendra Kumar Sangal, J.—This is an application u/s 482 Code of Criminal Procedure to quash the order dated 13.01.2009 passed by the learned Additional Sessions Judge, Court No. 2, Raebareli in Criminal Revision No. 59 of 2008 and order dated 17.03.2008 passed by the learned Judicial Magistrate-First, Raebareli in Smt. Vandana Mishra v. Arvind Kumar Mishra Criminal Misc. Case No. 748/2007, u/s 125 CrPC, P.S. Khero, District Raebareli.

Heard learned Counsel for the Petitioner as well as counsel for the Respondent No. 2 and learned Additional Government Advocate for the Respondent No. 1 and perused the record.

This matter was listed in the list of cases which appears to have been became infructuous as there was no stay order.

No counter affidavit has been filed on behalf of the Respondent No. 2 as well as on behalf of the State.

It reveals from the record that an application u/s 125 Code of Criminal Procedure was moved on behalf of the Respondent No. 2 against the Petitioner with the averments that she is legally wedded wife of the Petitioner and her marriage has taken place on 05.03.2002. There was a unlawful demand of dowry of the Petitioner and his family members of one golden ring, T.V. and Rs. 20,000/-cash which was not fulfilled by her and her parent so she was being tortured and harassed. For the marriage of her uncle, she went her parental, but she was not brought back from there by the Petitioner or his family members. Since then, she is living in her parents house and her care is not being taken up by the Petitioner and no maintenance amount is also being paid. This amounts cruelty to her. She has no means to maintain herself. On the other hand, Petitioner earn money from tuition work as well as from doing "Kheti" and he is having 5 bighas of land and he has double storied building in the city. His income is not less than Rs. 15,000/-per month. His father is also in Government Service in Jal Department and both they are man of status. She claimed Rs. 5,000/-per month as her maintenance.

Objection/written statement was filed by the Petitioner in the proceedings before the learned Magistrate accepting the case of the application that she is legally wedded wife and she left her matrimonial house for the marriage of her uncle. But it was pleaded that severally she was called back to her matrimonial house, but she has not complied the direction of the Petitioner-husband. She has also not permitted him to having sexual intercourse with her and under the pretext of her illness, she used to take drugs and have tried to kill the parents of the Petitioner and also badly abused them. He filed a petition for divorce with her before the competent court. She earning money from Sewing and Knitting work. Petitioner is high school failed, on the other hand, Respondent No. 2 is inter pass. It was further said that he has not land and no income from any business. He is dependent on the income of his father and application is liable to be dismissed.

To support its case, Respondent No. 2 examined herself and two witnesses Jag Jeveen Ram and Jitendra Nath. On the other hand, no evidence was adduced on behalf of the Petitioner before the learned Magistrate. Impugned judgment also shows that sufficient opportunity was also allowed to the Petitioner to adduce evidence as well as to raise arguments in the matter, but he has not availed the opportunity and after hearing the matter, learned Magistrate has passed the impugned order and awarded Rs. 700/-per month as her maintenance from the date of the judgment. Aggrieved by this order, a Revision No. 59/08 was filed by the Petitioner, but the same was also dismissed. Aggrieved by both these order, this petition has been filed.

Marriage of the Petitioner and Respondent No. 2 has not denied in the matter. It is also undisputed fact that Respondent No. 2 left her matrimonial house to attend the marriage-party of her uncle. As per Petitioner''s case, she is not coming back without sufficient cause. On the other hand, Respondent No. 2 has pleaded that she is not being taken back from her parent house to her matrimonial house by the Petitioner. Anyhow it is undisputed fact that Respondent No. 2 is living in her parental house since long. Nowhere it has been claimed by the Petitioner that when she is living in her parents house she has tried to help her in any way. No evidence has been adduced on behalf of the Petitioner before the learned Magistrate why he had not made any efforts to bring her to her matrimonial house. In the present petition neither the copy of the written statement nor copy of the application u/s 125 Code of Criminal Procedure have been filed. Further the copies of the statement recorded before the learned Magistrate of the witnesses on behalf of the Respondent No. 2 were not filed to see by this Court what has been mentioned in these papers. Copy of the complete order-sheet of the case before the learned Magistrate has also not been filed to the reasons best known to the Petitioner.

From the perusal of both the orders of the trial court i.e. Court of learned Magistrate as well as learned Sessions Judge, it reveals that sufficient opportunities were allowed to the Petitioner to adduce evidence before the learned Magistrate in defence as well as to get argued the matter but for one pretext or the other, he again and again sought the adjournment. Once costs of Rs. 100/-was also awarded on him and last opportunity was given to him. Even then, learned Counsel for the Respondent No. 2 states that neither costs has been paid nor he has complied this order of the court below. Learned Magistrate has given detailed and sufficient reasons why in the last he has not allowed the opportunity of hearing to the Petitioner in the matter. Learned Sessions Judge by impugned order has also confirmed the correctness of the findings of the trial court.

Seeing the facts and circumstances of the case, I do not find any sufficient cause in the matter to interfere in the orders of the trial court and learned Magistrate has rightly proceeded against the Petitioner in ex-parte proceedings.

Moreover, admittedly, Respondent No. 2 is legally wedded wife of the Petitioner. What happened in divorce case, it has not been explained on behalf of the Petitioner. The case said to have been filed in the year 2002, but what result of the same has taken place, it is not explained. As per Respondent No. 2''s case applicant-Petitioner is engaged in tuition work as well as doing "Kheti" work. He had double storied building in the city. His father is in Government Service of "Jal Nigam" and they both are man of status. In her on oath statement, she has stated so and two witnesses have corroborated her this on oath statement. There is no evidence to rebut on behalf of the Petitioner. Admittedly, for such a long time, Petitioner has not paid single penny to the Respondent No. 2 for maintenance, although she is his legally wedded wife. It has not been shown that without any sufficient cause she is living in her parents house. Petitioner is a young man suffering with no disease. He is unable to earn money, it is nowhere said on his behalf. His father is also a Government Servant. He is living in separate house from his father, it is not claimed by the Petitioner. It is also moral duty of the father of the Petitioner to maintain the Respondent No. 2 also who is legally wedded wife till he is residing with him.

Record shows that since 23.03.2007 up to 25.08.2007 several opportunities were allowed by the learned Magistrate to adduce evidence to him in defence but no evidence was adduced. Again several dates were fixed for raising the arguments in the matter but arguments were not raised. In the present position and way of life Rs. 700/-per month cannot be said an excessive amount for the maintenance of Respondent No. 2.

Seeing the facts and circumstances of the case, I am of the opinion that no interference is required by this Court in proceedings u/s 482 CrPC. Application u/s 482 Code of Criminal Procedure has no force and liable to be dismissed. Accordingly, application is hereby dismissed.