Atul Choure vs Aparna Choure & Another

The applicant has filed this criminal revision challenging the order dated 17/12/2015 passed by the Second Additional Principal Judge, Family Court,

Bhopal in MJC No.331/2011 thereby allowing the application preferred by respondents No.1 & 2 under Section 125 of the Cr.P.C..

Brief facts of the case are that respondents No. 1 & 2 filed an application under Section 125 of the Cr.P.C. before Family Court stating that

respondent No.1 had entered into the marriage with the applicant as per hindu customs and rituals on 20/05/1997. Respondent No.1 has given the birth

to respondent No.2 out of the said wedlock. Immediately after the marriage, applicant and his family members have ill-treated her for demand of

dowry. It was also contended that while respondent No.1 was hospitalized at the time of delivery of respondent No.2, the applicant has abused and

assaulted her. The parents of the applicant has also ill-treated her for demand of dowry and when the father of respondent No.1 refused to provide

the money to the applicant for purchasing house, then the applicant has deserted respondent No.1 and her father has taken her to Bhopal. Thereafter,

respondent has filed an application and contended that respondent No.2 was aged 13 years and was studying in Class-VII for which respondent No.1

has no means of her livelihood. While the applicant is Civil Engineer and was employed under a Private Company. Besides above he also doing work

of consultation and in this way earns Rs.40,000/- per month. The applicant filed reply of the said application and stated that from 12/10/11998

respondents has deserted the company of applicant without any reasonable cause and since last 14 years she has been living separately at the house

of her parents. Respondents have denied that they have demanded any dowry from respondent No.1. Respondent No.1 has also filed a false

complaint against the applicant and registered a criminal case against the applicant under Sections 498-A & 409 of the IPC. The applicant has also

filed an application under Section 9 of the Hindu Marriage Act. It has further been submitted that the applicant is doing private job and earn

Rs.12,000/- per month and he has liability of maintenance of old aged parents. Respondent No.1 is working in Doordarshan as Comparer and earns

Rs.10,000/- per month and by tuition & coaching earns of Rs.10,000/-. Thus, her application under Section 125 of the Cr.P.C. is liable to be rejected.

Learned counsel for the applicant submits that the maintenance awarded by the Family Court is on higher side. He submits that learned Court

below has erred in exercising the jurisdiction while arriving a finding that the applicant is illtreated to respondent No.1 for demand of dowry. He

further submits that respondent No.1 on her own way residing separately from the applicant without any sufficient reason. He further submits that the

applicant has been acquitted in the criminal case which has been registered by respondent No.1 against the applicant. He further submits that the

Family Court has erred in assessing the income of the applicant as Rs.40,000/- per month. He further submits that the Family Court has also over

looked the fact that respondent No.1 was working in Doordarshan and earning Rs.10,000/-. The Family Court has further erred in not considering the

documents filed by respondents as D-63, D-60, D-59 and D-61 which shows that respondent No.1 recently work in Doordarshan. In such

circumstances, he submits that the order passed by the Family Court is illegal and arbitrary.

On the other hand, learned counsel for the respondents supports the order passed by the Family Court. He submits that the Family Court has not

erred in passing the order in favour of the respondent looking to the income of the applicant. He submits that there were sufficient reason for

respondent No.1 for living separately from the applicant. Immediately after few months of the marriage, the applicant and her-in-laws have physically

and mentally torture her for demand of dowry. For these reasons, she has lodged FIR with the Police under Section 498-A and 409 of the IPC. This is

the sufficient reason for respondent No.1 for living separately from the applicant. He further submits that respondent No.1 was working in

Doordarshan as Comparer up to 2008 thereafter, she has left the job.

Learned counsel for respondent No.1 further submits that the applicant at present having no source of livelihood for maintaining herself as well as

her son respondent No.2. In view of the aforesaid, he submits that the amount of maintenance awarded by the Family Court is just and proper looking

to the income of the applicant. He further relied upon the judgment passed by the Hon’ble Apex Court in the case of Associated Cement Co. Ltd.

vs. Keshvanand, 1998 (1) SCC 687, as well as in the case of Sunita Kachwaha and others vs. Anil Kachwaha, 2014 (16) SCC 715.

Heard learned counsel for the parties and perused the record as well as the order passed by the Family Court.

In the present case, the applicant and non- applicant No.1 have entered into the marriage in the year 1997 and after few months of the marriage,

the applicant and his family members started physically and mentally torture to respondent No.1 for demand of dowry, because of which she has left

no option to left the matrimonial home. Thereafter, she filed an application under Section 125 of the Cr.P.C. claiming maintenance for herself as well

as respondent No.1. The family Court has allowed the said application and has awarded the maintenance of Rs.10,000/- to respondent No.1 and

Rs.5000/- to respondent No.2. Against the said order, the applicant has filed the present revision before this Court.

In the present case, first question which is to be decided whether the applicant has deserted respondent No.1. Respondent No.1 in her statement

has stated that after four months of the marriage she was pregnant on 19/05/1998 she was physically assaulted by the applicant as well as mother-in-

law. Thereafter, the applicant has left her at Indore and on 12/10/1998 the applicant has send her to the Bhopal and since then she is living with her

mother and father. She has further stated that she has lodged an FIR against the applicant and her-in-laws under Sections 498-A & 409 of the IPC.

She has also admitted that applicant has acquitted for committing the said offence, however, the appeal is pending before the High Court.

On the other hand, applicant in his statement has stated that respondent No.1 is living in maternal house in her own and she has registered a false

case under Sections 498-A & 409 of the IPC. He further submits that the applicant has filed an application under Section 9 of the Hindu Marriage

Act. On the basis of the statement recorded by the Family Court, Family court has come to the conclusion that the applicant has failed to give reasons

why respondent No.1 is living in her maternal house and, therefore, the Family Court has held that there are sufficient reasons for non-applicant for

residing separately from the applicant.

So far as the income of the non-applicant No.1 is concerned, the applicant has produced the documents Annexure D/1 to D/58 for the said

purpose. The applicant in his cross-examination has admitted that these documents is of the year 2006 and after 2006 she is not working in

Doordarshan as Comparer and at present respondent No.1 is not earning money. So far as the income of the applicant is concerned, the applicant is a

civil engineer and is earning Rs.40,000/- per month. However, the applicant submits that he is working as Supervisor under the Contractor and is

earning Rs.15,000/per month. In the cross-examination he was asked whether he is paying income tax. He deposed that he had no knowledge about

how much tax he has deposited. However, from perusal of the record it reveals that the amount of Rs.30,000/- has been deducted as TDS from his

income. Family Court has also found that the applicant has tried to conceal his income. The deduction of the TDS itself shows that the applicant is

earned sufficient and on the basis of this, Family Court assessed the income of the applicant Rs.30,000/- per month. After recording the oral as well as

documentary evidence, Family Court has awarded the amount of Rs.10,000/- to respondent No.1 and Rs.5000/- to respondent No.2 which appears to

be just and proper.

So far as the contention of counsel for the applicant that respondent No.1 is an educated lady and she can earn for herself is concerned, the

Supreme Court in the case of Sunita Kachwaha and others vs. Anil Kachwaha, 2014(16) SCC 715, in para 6 & 8 has held as under :-

“6. The proceeding under Section 125 CrPC is summary in nature. In a proceeding under Section 125 CrPC, it is not necessary for the Court to

ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the

High Court was not right in going into the intricacies of dispute between the appellant wife and the respondent and observing that the appellant wife on

her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of

the appellant wife and the factual findings, as recorded by the Family Court.

The learned counsel for the respondent submitted that the appellant wife is well qualified, having postgraduate degree in Geography and working as

a teacher in Jabalpur and also working in the Health Department. Therefore, she has income of her own and needs no financial support from the

respondent. In our considered view, merely because the appellant wife is a qualified postgraduate, it would not be sufficient to hold that she is in a

position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High

Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her

claim for maintenance.â€​

In the said judgment, the Apex Court has held that because of appellant’s wife is a qualified postgraduate, it would not be sufficient to hold that

she is in a position to maintain herself. The scope of the revision in this matter is very limited and this Court cannot act as an appellate authority for

evaluating the evidence produced by the parties.

The Apex Court in the case of Associated Cement Co, Ltd. vs. Keshvanand, 1998 (1) SCC 687 in para 10 has held as under :-

 “10.  In State of Kerala vs. K.M.Charia Abdulla & Co.this Court has highlighted the difference between the two jurisdictions in the following

words :-

“There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the said two expressions. An

appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence

subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not

the power to review the evidence unless the statute expressly confers on it that power.â€​

Thus, in light of the aforesaid judgements, I do not find any reason to interfere in the criminal revision. Accordingly, the criminal revision is hereby

dismissed.