Bhanwar Kanwar And Ors vs Shambhu Singh

Instant criminal revision petition has been filed by the petitioner against the order dated 20.06.2012 passed by the learned Judge, Family Court, Udaipur whereby, while dismissing the application filed by the petitioner no.1 under Section 125 Cr.P.C, allowed the application filed on behalf of petitioner no.2 minor son and ordered the respondent to pay maintenance in the sum of Rs. 3000/- per month from the date of filing of application.

Brief facts of the case are that the marriage between the petitioner no.1 and respondent was solemnized on 07.03.1988. Both the petitioner no.1 and husband started living as husband and wife but after about two years, the respondent husband and mother-in-law started harassing the ill-treating the petitioner no.1 demanding more dowry and due to this behavior she came to her father's house and after some time her husband visited her parent's house and she went back to the house of husband. Out of this wedlock, one son petitioner no.2 was born on 01.05.1996. Thereafter, the respondent husband again started beating the petitioner no.1 and turned her out, therefore, she went to her father's home alongwith minor son and started residing in the house of her parents.

The petitioner no.1 and 2 filed an application under Section 125 Cr.P.C stating that the respondent husband is working in Forest Department is also having 15 bighas of land, therefore, a sum of Rs. 5,000/- per month as maintenance may be awarded to her and minor son.

A reply to the application was filed on behalf of the respondent husband. He denied all the allegations levelled against him.

In support of her case, the petitioner no.1 examined herself as AW/1 and AW/2 Amar Singh whereas, respondent husband examined himself as NAW/1 and NAW/2 Nawla. Thereafter, the Judge, Family Court dismissed the application filed by the petitioner no.1 under Section 125 Cr.P.C, however, allowed the application filed on behalf of petitioner no.2 minor son and ordered the respondent to pay maintenance in the sum of Rs. 3000/- per month from the date of filing of application.

Learned counsel for the petitioner submits that petitioner is having no independent source of income whereas, the respondent husband is working in Forest Department and petitioner no.1 has been forced to live with her parents and she has not left the matrimonial house on her own will but the trial court without appreciating the facts of the case in correct perspective observed that the petitioner no.1 has voluntarily left the house of her husband, therefore, she is not entitled for maintenance. Therefore, the impuged order may be quashed and set aside to the extent of denying maintenance to petitioner no.1.

Per contra, counsel for the respondent submits that the learned Family Court rightly observed that the petitioner no.1 wife herself left the house of respondent and resided in the house of her parents. When the husband gave notice to her, then also she did not return to house of husband, therefore, the impugned order passed by the Judge, Family Court is justified and is not liable to be interfered.

I have considered the rival argument so also carefully scanned the entire record.

Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain 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.

A holistic reading of the provisions would clearly reveal that the responsibility and liability of a person to maintain his wife, children and parents rests on the condition that if any person having sufficient means neglects or refuses to maintain them (wife, children, parents), he can be ordered to make a monthly allowance for maintenance for his wife or child or parents at such monthly rate. In the case in hand, on perusal of the statement of the petitioner no.1 Bhanwar Kanwar, it is clear that she has categorically stated that she was beaten by husband and turned out from the house demanding more dowry. Earlier when the petitioner was turned out from the house, some compromise had taken place then she started residing with the husband but later on again the petitioner started harassing and beating the petitioner wife and turned her out from the matrimonial home. In the year 2000, she went to the office of respondent husband from where the husband ran away. From the statement of petitioner no.1, it is clear that she never stated that she is residing happily with her parents and left the matrimonial house on her own will. Therefore, the trial court has committed an error in rejecting the application filed by the petitioner no.1 wife under Section 125 Cr.P.C.

Accordingly, the present revision petition is allowed. The impugned order dated 20.06.2012 passed by the learned Judge, Family Court, Udaipur is hereby quashed and set aside to the extent of rejecting the application filed by the petitioner no.1 wife under Section 125 Cr.P.C. The matter is remanded to the Judge, Family Court, Udaipur to pass a fresh order in accordance with law. The Family court is directed to expedite the matter and decide the application at the earliest.

The record of the trial court be sent back forthwith.