Gannshyam vs Rekha Devi And Others

Sandeep Sharma, J

Instant petition filed under S.482 CrPC lays challenge to order dated 8.3.2019 passed by learned Additional Sessions Judge-I, Mandi, HP camp at

Karsog, allowing Criminal Revision No. 33/2013 filed under S.397 CrPC by the respondents, laying therein challenge to order dated 31.7.2013 passed

by learned Judicial Magistrate First Class, Karsog, District Mandi, whereby petition having been filed by them under S.125 CrPC, came to be

dismissed.

Precisely, the facts of the case as emerge from record, are that marriage inter se petitioner and respondent No.1 was solemnized in the year 2009

as per customs prevailing in the society and since then both were living as husband and wife. Out of their wedlock, one son namely Pawan Kumar,

respondent No.2 was born. Since after some time of marriage, certain differences cropped inter se parties, and petitioner under the influence of liquor

started giving beatings to the respondent No. 1, she was compelled to leave her matrimonial house. Allegedly, on the night of 15.9.2011, petitioner

gave beatings to the respondent No.1 under the influence of liquor and turned her out of his house, as such respondent No.1 was compelled to take

shelter in the house of her neighbourer and on the next day, she went to her parental house. Record reveals that respondent No.1 filed an application

before Sub Divisional Magistrate Karsog, praying therein for the custody of her minor son i.e. respondent No.2. Sub Divisional Magistrate Karsog

directed the petitioner to take respondent No.1 back to his house, however, outside the court complex, petitioner threatened the respondent No.1 with

dire consequences, if she comes back to his house and since then respondent No.1 alongwith her minor son started residing at her parental house.

Respondent No.1 instituted proceedings under S.125 CrPC, praying therein for maintenance on the facts and circumstances narrated herein above and

claimed that after 16.9.2011, petitioner never came to take her back as well as her minor son, rather, he is threatening her with dire consequences on

mobile phone, as such, it is very difficult to live with petitioner. She submitted before learned court below that she being a poor lady has no source of

income, whereas, petitioner has income of Rs.9000 from all sources and as such, he be directed to provide adequate maintenance to them.

Aforesaid plea made on behalf of respondent No.1 came to be resisted by the petitioner, who stated before the learned trial court below that at no

point of time, he compelled respondent No.1 to leave the matrimonial house rather, she of her own volition left his company and as such, she is not

entitled to any maintenance.

Learned trial Court, on the basis of pleadings as well as evidence adduced on record, dismissed the petition filed on behalf of respondent No.1.

Being aggrieved and dissatisfied with order dated 31.7.2013 passed by Judicial Magistrate First Class Karsog, Mandi, respondent No.1 preferred a Cr.

Revision under S. 397 CrPC before learned Additional Sessions Judge, Court No.1, Mandi, who vide judgment dated 8.9.2019, set aside the order

dated 31.7.2013 passed by learned trial Court and directed the petitioner herein to pay sum of Rs.1,000/- to respondent No.2 and Rs.1500/- to

respondent No.1 as maintenance under S.125 CrPC. In the aforesaid background, petitioner has approached this court in the instant proceedings,

praying therein to dismiss the applications of respondents, after setting aside judgment dated 8.7.2019 passed by Additional Sessions Judge-I, Mandi

camp at Karsog.

Having heard learned counsel for the parties and perused material available on record this court finds that there is no dispute inter se parties that

respondent No.1 is the legally wedded wife of the petitioner. It is also not in dispute that respondent No.2 is legitimate son of the petitioner. Though in

the case at hand, material available on record reveals that for four years after marriage, respondent No.1 remained in the company of petitioner, but

thereafter on account of compelling circumstances, she left company of petitioner and started residing with her parents. In the case at hand,

respondent No.1 alleged that the petitioner used to give her beatings to her under the influence of liquor and on 15.9.2011 she was ousted from the

matrimonial house by the petitioner under the influence of liquor as such, she was compelled to take shelter in neighbourer’s house.

Learned trial Court, after having perused pleadings and evidence adduced on record, arrived at a conclusion that since respondent No.1 has been

not able to prove the contents of complaint by entering into witness box, she cannot be held entitled to maintenance. However, aforesaid finding

returned by learned trial Court came to be reversed vide judgment dated 8.3.2019 passed by learned Additional Sessions Judge-I, who after having

scanned entire evidence vis-Ã -vis complaint of respondent No.1, rightly came to the conclusion that once in the complaint under S.125 CrPC,

respondent No.1 has specifically leveled allegations with regard to cruelty meted to her by petitioner and mere omission, if any, on the part of

respondent No.1 to state such facts in her examination-in-chief /cross - examination could not be made a ground by learned trial Court to reject prayer

for maintenance made by respondent No.1. Record reveals that the petitioner in no uncertain terms leveled allegations of physical and mental

harassment by petitioner but, while deposing in the court, she did not state clearly with regard to nature and manner in which cruelty was meted to her

at the hands of the petitioner. While considering prayer for maintenance under S.125 CrPC, court besides taking note of pleading and evidence

adduced on record is also under obligation to take care of other facts and circumstances, which may be relevant for adjudication of application filed

before it. In the case at hand, it has come on record that respondent No.1 after being ousted from matrimonial house had filed an application to Sub

Divisional Magistrate, Karsog seeking custody of her minor son. It is not in dispute that with the intervention of Sub Divisional Magistrate, Karsog,

custody of minor son of respondent No.1 was handed over to her and at that time in court complex itself, petitioner threatened respondent No.1 with

dire consequences. Apart from above there is material evidence, which indicates harassment of respondent No.1 at the hands of the petitioner. Once

respondent No.1 left company of the petitioner, he served her with legal notice, bare perusal of which reveals that instead of persuading respondent

No.1 to join his company, petitioner threatened to constitute legal proceedings, as such, learned Additional Sessions Judge-I, rightly observed in its

order that bare perusal of contents of legal notice itself amounts to cruelty towards the respondent No.1.

Leaving everything aside, once factum with regard to marriage of petitioner with respondent No.1, stands admitted by the petitioner, petitioner

cannot refuse to maintain his wife and child on the ground that he is ready to take respondent No.1 back. Since relation inter se petitioner and

respondent No.1 are not cordial as is evident form material available on record, this court or any other court of law, cannot compel respondent No. 1

to live with the petitioner. Since it stands duly proved on record that petitioner earns Rs. 8000/- per month, this court finds no illegality or infirmity in

the order passed by learned Additional Sessions Judge-I, whereby he has awarded Rs.1000/- to respondent No.2 and Rs.1500 to respondent No. 1 per

month. Since the petitioner has not been able to prove that respondent No.1 has some independent source of income, he is otherwise under obligation

to maintain both the respondents, as such, there is no illegality or irregularity in the judgment of Additional Sessions Judge, which is accordingly upheld.

In view of above, present petition is devoid of merit and is dismissed accordingly.

Pending applications, if any, are disposed of. Interim directions, if any, stand vacated.