Bharati Kumari and Others vs State of Rajasthan and Others

Vijay Bishnoi, J—This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners with a prayer for setting aside the order dated 03.06.2013 passed by Additional Sessions Judge, Bali, District Pali (hereinafter referred to as ''the revisional court'') in Criminal Revision Petition No. 40/2008 filed on behalf of the respondent No. 2. The revisional court vide order dated 03.06.2013 has partly allowed the revision petition filed by the respondent No. 2 and set aside the order dated 31.03.2008 passed by the Additional Chief Judicial Magistrate, Bali, District Pali (hereinafter referred to as ''the trial court'') up to the extent of awarding maintenance to the petitioner No. 1 to the tune of Rs. 750/- per month.

Brief facts of the case are that the petitioners had moved an application under Section 125 Cr.P.C. before the trial court. The trial court vide order dated 31.03.2008 accepted the application under Section 125 Cr.P.C. filed by the petitioners and directed the respondent No. 2 to pay maintenance to the petitioners to the tune of Rs. 1000/- per month (Rs. 750/- to the petitioner No. 1 and Rs. 250/- to the petitioner No. 2).

In the application under Section 125 Cr.P.C. the petitioner No. 1 alleged that after her marriage with the respondent No. 2, he treated her well for some time but later on started abusing and beating her in drunken state. It is further alleged that when she was pregnant by two months, the respondent No. 2 assaulted her in drunken state, therefore, she left her husband''s house and started living at her father''s house. It is further alleged that though she has been residing at her father''s house for about one and a half years but the respondent No. 2 is not taking care of her and threatening to kill her after consuming liquor. It is stated in the application that father of the respondent No. 2 is an employee of railways whereas the respondent No. 2 is working as a Teacher in a private school. It is further alleged in the application under Section 125 Cr.P.C. that on 18.12.2005 the respondent No. 2 had come to her father''s house in drunken state and started quarrelling and then the police from Police Station, Bali District Pali was called and the respondent No. 2 was arrested by the police. It is also stated in the application under Section 125 Cr.P.C. that the father of the petitioner No. 1 is a poor person and, therefore, it is very difficult for the petitioners to maintain themselves and, therefore, the respondent No. 2 be directed to pay maintenance to them to the tune of Rs. 2000/- per month.

The respondent No. 2 had filed reply to the application under Section 125 Cr.P.C. and denied the allegations levelled against him, and contended that the petitioner No. 1 left his house on her own and she is capable to maintain herself as she is working as a Teacher in a private school. It is also stated by respondent No. 2 that the petitioner No. 1 passed B.A. examination while living with him and after giving birth of the petitioner No. 2, he was not permitted to see him and was humiliated. It is alleged that after birth of the petitioner No. 2, he along with his family members had tried to bring the petitioners to his house, but the parents of the petitioner No. 1 had refused to send her with him. It is also alleged that the respondent No. 2 is unemployed, whereas the petitioner No. 1 is B.A. pass and wants to do job and though he is ready to keep the petitioners with him, but she did not accompany him. It is contended that the petitioner No. 1 is earning around Rs. 2000/- per month by teaching job and tuition and, therefore, the application under Section 125 Cr.P.C. may be dismissed.

Before the trial court the petitioner No. 1 got examined herself and her father in support of her application under Section 125 Cr.P.C. whereas the respondent No. 2 got examined himself and two other witnesses in his defence.

The trial court, after analysing the evidence produced by the parties, has held that the petitioner No. 1 was assaulted by the respondent No. 2 in drunken state while she was living in her in-law''s house and she was even threatened and assaulted by the respondent No. 2 when the petitioner No. 1 was living in her father''s house. The trial court has relied upon the incident in which the respondent No. 2 had created disturbance in drunken state at his in-law''s house on 18.12.2005 for which the police arrested him. The trial court disbelieved the witnesses, produced on behalf of the respondent No. 2 in defence to prove that he had gone to his in-law''s house along with his family members with a prayer to send the petitioners with him, on the ground that both the witnesses DW-2 and DW-3 are giving different dates when they had approached the father of the petitioner No. 1 with a prayer to send the petitioners to the house of the respondent No. 2. The trial court has also held that the respondent No. 2 has failed to prove that the petitioner No. 1 is serving as a Teacher in a private school and earning sufficient amount to maintain herself. The trial court has further held that there is sufficient evidence available on record to prove the fact that the respondent No. 2 had assaulted the petitioner No. 1 when she was living with him and also assaulted her while she was living in her parents'' house and, therefore, she has sufficient reason to live separate from the respondent No. 2. The trial court has also held that from the material and evidence available on record, it is proved that the respondent No. 2 is teaching in private school and also doing vegetable business and, therefore, he is liable to pay maintenance to the tune of Rs. 1000/- per month to the petitioners.

Being aggrieved with the order dated 31.03.2008 passed by the trial court, the respondent No. 2 approached the revisional court by way of filing criminal revision petition and the revisional court vide order dated 03.06.2013 has partly allowed the revision petition filed by the respondent No. 2 and set aside the impugned order dated 31.03.2008 to the extent of awarding maintenance to the petitioner No. 1.

Being aggrieved with the order dated 03.06.2013 passed by the revisional court, the petitioners have preferred this criminal misc. petition and during the pendency of this criminal misc. petition, the petitioners also moved an application under Section 127 Cr.P.C. with a prayer for enhancement of maintenance amount as awarded by the trial court. The said application is accompanied by an affidavit of the petitioner No. 1.

Learned counsel for the petitioners has argued that the revisional court has grossly erred in setting aside the order of awarding maintenance to the petitioner No. 1 while holding that she is residing separate from the respondent No. 2 without any sufficient cause. It is argued that the revisional court has reversed the findings given by the trial court merely on the basis of surmises and conjectures. Learned counsel for the petitioners has submitted that the revisional court has reversed the findings of the trial court merely for the reason that the petitioner No. 1 while staying with respondent No. 2 had not written any letter to her father regarding cruelty and harassment by him. It is further submitted that while reversing the findings of the trial court, the revisional court has also observed that the father of the petitioner No. 1 has not made any effort to send his daughter to the house of the respondent No. 2 by calling a Panchayat and, therefore, it can be presumed that the petitioner No. 1 is residing at her father''s house without there being any sufficient cause. It is argued that the reasons given by the revisional court for reversing the findings of the trial court are absolutely baseless. The revisional court has acted illegally in reversing the findings of the trial court while overlooking the evidence produced before it by the parties. It is argued that the petitioner No. 1 in specific terms deposed before the trial court that her husband used to assault her in drunken state and she is apprehending that if she goes to her husband''s house, anything can be done. It is argued that the incident taken place on 18.12.2005, at the house of the parents of the petitioner No. 1, was admitted by the respondent No. 2 himself wherein he was arrested by the police while creating disturbance in drunken state and this fact itself is sufficient for the petitioner No. 1 to live separate from the respondent No. 2. Learned counsel for the petitioners has argued that if a woman feels unsafe in residing at a particular place, she has every right to refuse to stay at that place and cannot be compelled to live at that place. It is contended that the respondent No. 2 used to beat the petitioner No. 1 in drunken state and, therefore, she has sufficient reason to live separate from him, but the revisional court without considering this aspect and without analysing the threat to the life and liberty of the petitioner No. 1, has illegally reversed the findings of the trial court. Hence, the order dated 03.06.2013 is liable to be set aside.

While arguing on the application under Section 127 Cr.P.C., learned counsel for the petitioners has submitted that the father of the petitioner No. 1 has died and, therefore, she is facing great hardship as she is having no means to maintain herself and her son. It is also contended that her son-petitioner No. 2 is a school going boy and to continue his education, she needs money and, therefore, the maintenance awarded to the petitioner No. 2 is also liable to be enhanced. It is alleged that the respondent No. 2 is leading a lavish life, he has performed second marriage and from the said marriage, he became father of a female child also. It is submitted that in the present case, looking to the escalation in the living cost presently, the amount of maintenance awarded by the trial court to the petitioners is insufficient and, therefore, the same is liable to be enhanced.

Per contra, learned counsel appearing for the respondent No. 2 has vehemently opposed this criminal misc. petition while arguing that the same is not maintainable because the petitioners have remedy of filing criminal revision under Section 397 Cr.P.C. It is contended that when the remedy of filing a criminal revision petition is available to the petitioners, this criminal misc. petition under Section 482 Cr.P.C. is not maintainable.

In support of above contentions, learned counsel for the respondent No. 2 has placed reliance on a decision of the Hon''ble Supreme Court rendered in Mohit alias Sonu and Another Vs. State of U.P. and Another, (2013) 8 AD 631 : AIR 2013 SC 2248 : (2013) 3 JCC 2250 : (2013) 9 JT 205 : (2013) 3 RCR(Criminal) 673 : (2013) 7 SCALE 620 : (2013) 7 SCC 789 , a decision of this Court at Jaipur Bench rendered in Vipin Gupta and Another Vs. State of Rajasthan and Another, (2009) CriLJ 3747 : (2010) 1 Crimes 61 : (2009) 4 RLW 3399 and a decision of Allahabad High Court rendered in Chhote Lal @ Raju Vs. State of U.P. and Another, (2013) 1 ADJ 52 : (2013) 1 DMC 788 .

Learned counsel for the respondent No. 2 has further argued that the revisional court has not committed any illegality in reversing the findings of the trial court in respect of awarding maintenance to the petitioner No. 1. It is contended that the revisional court has rightly held that the petitioner No. 1 has no sufficient cause to live separate from the respondent No. 2 and, therefore, as per Sub-Section (4) of Section 125 Cr.P.C. she is not entitled for any maintenance. It is contended by learned counsel for the petitioners that before the courts below and even today the respondent No. 2 is ready and willing to keep the petitioners with him and, therefore, the order passed by the revisional court is not liable to be interfered with.

In support of the above contention, learned counsel for the respondent No. 2 has placed reliance on a decision of the Hon''ble Supreme Court rendered in Deb Narayan Halder Vs. Smt. Anushree Halder, AIR 2003 SC 3174 : (2003) CriLJ 4470 : (2003) 7 JT 379 : (2003) 6 SCALE 742 : (2003) 11 SCC 303 : (2003) AIRSCW 4522 : (2003) 6 Supreme 415 and a decision of this Court rendered in Durga (Smt.) Vs. Bhanwar Lal reported in 2003(1) Cr.L.R. (Raj.) 201.

Learned counsel for the respondent No. 2 has further argued that the application filed by the petitioners under Section 127 Cr.P.C. for enhancing maintenance amount is also not maintainable for the reasons that maintenance amount can only be altered by a Magistrate and this Court while exercising revisional jurisdiction or inherent jurisdiction cannot alter the maintenance amount. It is further argued that there is no change in circumstances after passing of the order by the trial court and, therefore, also the application under Section 127 Cr.P.C. preferred on behalf of the petitioners is not liable to be entertained.

In support of the above contention, learned counsel for the respondent No. 2 has placed reliance on the decisions of this Court rendered in Raj Kumar Vs. Mst. Shanta Bai, (2002) CriLJ 2894 : (2002) 2 DMC 368 : (2002) 2 WLC 522 : (2002) 2 WLN 638 and Budh Ram Vs. Smt. Sudesh Bala and Others, (2003) 1 DMC 41 : (2003) 2 RLW 1176 : (2002) 3 WLN 709 .

Heard learned counsel for the parties and perused the impugned orders.

There is no quarrel about the proposition of law that when there is specific remedy provided by way of appeal or revision, the inherent power under Section 482 Cr.P.C. should not be resorted to. But it is also equally true that if the order passed by the court below clearly brings about a situation which is an abuse of the process of Court or cause grave miscarriage of justice, then nothing contained in Section 397 and 401 Cr.P.C. can limit or effect the exercise of inherent power by the High Court. Ordinarily, when the remedy of criminal revision is available, this Court does not exercise its inherent jurisdiction under Section 482 Cr.P.C., but if the illegality committed by the courts below is apparent and resulted in grave miscarriage of justice, the High Court cannot shut its eyes and can always interfere to prevent miscarriage of justice. Section 483 Cr.P.C. cast a duty upon the High Court to exercise continuous superintendence over the inferior criminal Courts and where the High Court finds that there is grave error in the order passed by the inferior Courts resulted in grave miscarriage of justices, it can interfere to prevent such miscarriage of justice. A Three Judge Bench of the Hon''ble Supreme Court in Krishnan and another Vs. Krishnaveni and another, AIR 1997 SC 987 : (1997) CriLJ 1519 : (1997) 1 Crimes 97 : (1997) 1 JT 657 : (1997) 1 SCALE 458 : (1997) 4 SCC 241 : (1997) 1 SCR 511 : (1997) AIRSCW 950 : (1997) 1 Supreme 628 , while defining the scope of Sections 397, 401, 482 and 483 Cr.P.C. has held as under:-

"7. It is seen that exercise of the revisional power by the High Court under S. 397 read with S. 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Session and the Magistrates are inferior Criminal Courts to the High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, S. 397 and S. 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under S. 401 to exercise the revisional power on the grounds mentioned therein, i.e. to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under S. 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice.

The object of S. 483 and the purpose behind conferring the revisional power under S. 397 read with S. 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by S. 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under S. 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order.

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In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of S. 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under S. 482 of the Code and as it is paramount power of continuous superintendence of the High Court under S. 483, the High is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below......"

The Hon''ble Supreme Court in another decision rendered in Dhariwal Tobaco Products Ltd. and Others Vs. Sate of Maharashtra and Another, AIR 2009 SC 1032 : (2009) CriLJ 974 : (2008) 16 SCALE 240 has also held that it cannot be held that availability of remedy of filing criminal revision will be a total bar to file petition under Section 482 Cr.P.C.

I am of the opinion that in cases involving matrimonial disputes and in cases where a claim for maintenance is advanced by a deserted wife, it would not be proper to stick to hyper-technicalities and where the demand is for justice, inherent power of this Court can very well be invoked.

In view of the law laid down by the Hon''ble Supreme Court in Krishnan and Dhariwal Tobaco Products Ltd. (supra) if we examine the order dated 03.06.2013 passed by the revisional court, it is clear that the revisional court on the basis of conjecture and surmises, has made out a case against the petitioner No. 1 and overlooked the evidence of petitioner No. 1 and her father and has wrongly placed reliance on the evidence adduced by the respondent No. 2, particularly DW-2 and DW-3 which is contradictory to each other. The courts are not permitted to give findings on conjecture and surmises while examining the evidence placed on record and the case pleaded by the parties.

In the present case, the revisional court has gone to the extent of observing that the petitioner No. 1 did not write any letter to her parents complaining about the cruelty and harassment by the respondent No. 2 and since father of the petitioner No. 1 did not try to call Panchayat to send his daughter with the respondent No. 2, it can be presumed that the petitioner No. 1 was never subjected to cruelty and she is residing separately from respondent No. 2 without sufficient cause. The revisional court has also gone up to the extent in observing that the petitioner No. 1 has denied to go with the respondent No. 2 despite assurance given to her that her father-in-law and mother-in-law would take care of her and she would not be harassed, therefore, it is clear that the petitioner No. 1 is not willing to live with the respondent No. 2. It is very strange that neither the father-in-law nor mother-in-law of the petitioner No. 1 has deposed before the trial court that they would ensure the safety of the petitioner No. 1 in the house of the respondent No. 2. In the absence of any such assurance or guarantee by the parents of respondent No. 2, how it can be presumed that the petitioner No. 1 has denied to live with the respondent No. 2 without any sufficient cause. The revisional court has also disbelieved the incident of 18.12.2005, on which date the respondent No. 2 had created disturbance at his in-law''s house and the police had arrested him, merely by saying that the newspaper report cannot be deemed to be a proof of incident though the respondent No. 2 himself has admitted that he was arrested by the police in connection with the said incident.

This Court is of the opinion that the revisional court has illegally reversed the findings of the trial court on the basis of surmises and conjectures.

A woman, when in clear terms, expresses her apprehension about her safety in the house of her husband, cannot be denied maintenance on the ground that she is living separately from her husband on her own will. A woman, who is constantly beaten by her husband in a drunken state, has sufficient cause of living separately from her husband.

The revisional court has also ignored the fact that the two witnesses produced on behalf of the respondent No. 2 have not given specific dates when they approached the father of the petitioner No. 1 with a prayer to send her to her husband''s house. The trial court has rightly observed that both the witnesses are giving different dates of approaching the respondent No. 2 and versions given by both the witnesses are contradictory and, therefore, the same cannot be relied.

In the over all facts and circumstances of the case, I have no hesitation in holding that the revisional court has erred in upsetting the findings arrived at by the trial court which resulted in grave miscarriage of justice and, therefore, to prevent the miscarriage of justice, the order dated 03.06.2013 passed by the revisional court is liable to be set aside.

So far as the prayer of the petitioners for enhancement of the maintenance amount as per Section 127 Cr.P.C. is concerned, it is noticed that the application filed by the petitioner No. 1 under Section 127 Cr.P.C. is accompanied by an affidavit whereas no counter-affidavit has been filed on behalf of the respondent No. 2 and only a reply through his advocate is filed. The respondent No. 2 has not disputed the factum of death of the father of the petitioner No. 1 and has also not disputed that the petitioner No. 2 is going to school. He has failed to furnish any proof that the petitioner No. 1 is earning or having any source of income to maintain herself and the petitioner No. 2.

In such circumstances, it is clear that after passing of the order dated 31.03.2008 by the trial court, circumstances have changed. The father of the petitioner No. 1 has died and the petitioner No. 2 has grown up and going to school. The living cost has been escalated and it is difficult to survive for two persons on the meagre amount of Rs. 1000/- per month.

So far as maintainability of the application under Section 127 Cr.P.C. preferred on behalf of the petitioners is concerned, this Court is of the opinion that as per Section 482 Cr.P.C., to secure the ends of justice, this Court is competent enough to make such order as may be necessary to give effect to any order under Criminal Procedure Code.

Looking to the facts and circumstances of the case and to secure the ends of justice, it is a fit case where the petitioners deserve enhancement in the maintenance amount.

So far as decision rendered by the Hon''ble Supreme Court in the case of Deb Narayan Halder (supra) is concerned the same is of no help to the respondent No. 2 because in that case, after scrutinising the evidence, the Hon''ble Supreme Court has come to the conclusion that no dowry was ever demanded either before the marriage or after the marriage. The mother of the wife had to admit that the appellant has never demanded any dowry or gift. The Hon''ble Supreme Court has also found that the parties have admitted that they frequently went during vacation to visit different places and on some occasions they were even accompanied by the relatives of the wife. The Hon''ble Supreme Court has found that the husband has arranged an agency of the UTI to keep wife engaged and also opened a joint account in the Bank which she could operate. Looking to the above evidence the Hon''ble Supreme Court has observed that all these facts go to indicate that for several years after their marriage the husband and wife enjoyed normal marital relationship and there is evidence to show that the appellant used to praise his wife in the presence of others by complimenting her and giving her credit for the good performance of their son in his studies. However, in the present case no such facts have emerged. On the other hand, the evidence of this fact exists that after some time of marriage, the respondent No. 2 used to harass and beat the petitioner No. 1 in drunken state and when she started living at her parents'' house, the respondent No. 2 had assaulted her there also and for which he was arrested. There is no evidence of this effect that the relation between the petitioner No. 1 and the respondent No. 2 remained cordial for long time.

So far as the decisions rendered in the cases of Raj Kumar, Budh Ram, Durga (Smt.) and Chhote Lal @ Raju (supra) are concerned, the same are not applicable in the present case as the respective Courts in all those cases have held that the revisional court has no jurisdiction to enhance the maintenance amount. However, in this case, the petitioners have made prayer for enhancing the maintenance amount while invoking inherent power of the Court and not in the revisional jurisdiction and, therefore, the above referred cases are of no help to the respondent No. 2.

In the case of Durga (Smt.) (supra), the Court has found that the wife has alleged that she was ousted from the house of the husband as he has contracted a second marriage in village Navati near Swaroopganj. This court while analysing the evidence produced by the wife has held that her testimony is against the pleadings and the witnesses produced by her in support of her claim are not the residents of her village and their evidences are also contradictory. However, in the present case the petitioner No. 1 has proved by submitting sufficient evidence what she has pleaded in her application and, therefore, the decision rendered in the case of Durga (Smt.) (supra) is distinguishable on the facts.

As stated earlier that there is quarrel about the proposition of law laid down by the Hon''ble Supreme Court in the case of Mohit alias Sonu (supra) and by this Court in the case of Vipin Gupta (supra), however, as held by the Hon''ble Supreme Court in the case of Krishnan (supra) to secure the ends of justice or to prevent the miscarriage of justice, this Court has ample power under Sections 482 and 483 Cr.P.C. to interfere with the orders passed by the inferior criminal courts.

Hence, this criminal misc. petition is allowed. The order dated 03.06.2013 passed by revisional court is set aside and the order dated 31.03.2008 passed by the trial court is restored.

The application filed by the petitioners under Section 127 Cr.P.C. is also allowed. The respondent No. 2 is liable to pay maintenance to the petitioners as per the order passed by the trial court up to 03.09.2013. However, the respondent No. 2 is directed to pay enhanced maintenance amount to the tune of Rs. 3000/- to the petitioner No. 1 and Rs. 2000/- to the petitioner No. 2 total Rs. 5000/- from 04.09.2013, the date of filing of this criminal misc. petition. The respondent No. 2 is further directed to pay due maintenance amount to the petitioners within a period of two months from today and to pay monthly maintenance amount to the petitioners regularly.

Stay petition stands disposed of.