Gyatri Devi And Ors vs Harish Kumar

Instant revision petition has been filed by the petitioners against the order dated 15.01.2018 passed by learned Family Judge, Sriganganagar in Cr. Misc. Case No.135/2016 by which the learned Judge has rejected the application filed by the petitioners under Section 125 Cr.P.C. for awarding the maintenance.

Counsel for the petitioners submits that the learned Family Court while rejecting the application for maintenance has neither assigned any cogent reason nor considered the fact that out of the wedlock of petitioner-wife and respondent three children were born and they are living with the petitioner-wife. The learned Family Court has not awarded any maintenance even in favour of the three minor children. The learned Family Court has drawn a wrong presumption and thereby rejected the application under Section 125 Cr.P.C.

Per contra, learned counsel for the respondent-husband submits that the learned Family Court has considered the matter in all aspect and has rightly rejected the application under Section 125 Cr.P.C. The learned Family Court has passed a reasoned order, which does not require any interference at the hands of this Court.

Heard the learned counsel for the parties and perused the order impugned and carefully gone through the record.

In the application under Section 125 Cr.P.C., it has been pleaded that the marriage of the petitioner-wife was solemnized with the respondent-husband on 17.05.2005 according to hindu rites and rituals and at the time of marriage, sufficient dowry was given by the parents of the petitioner-wife. After some time of marriage, the respondent-husband and his family members started cruelty with the petitioner-wife for bringing less dowry and demanded more dowry. Out of wedlock, three children were born out. After birth of second child, the accused-husband demanded Rs.1 lac from the petitioner-wife and upon refusal, he had beaten the petitioner-wife with fist blow. Thereafter in order to resolve the dispute, a Panchayat meeting was held and upon assurance given by the respondent-husband for not committing any cruelty with the petitioner-wife, she again started residing with the respondent-husband. However, after some time, the respondent-husband and his family members again started cruelty with the petitioner-wife and demanded Rs.1 lac and threw her out of the matrimonial home. Thereafter again a Panchayat meeting was arranged and the petitioner-wife started living with the respondent-husband. However, again after some time, the respondent-husband started cruelty with the petitioner-wife after consuming liquor and turned out the petitioner-wife out from the matrimonial home. Thereafter, the petitioner-wife lodged a criminal complaint against the respondent-husband at Mahila Thana, Sriganganagar for offence under Sections 406, 498A, 323, 337 IPC. The petitioner-wife sought maintenance of Rs.50,000/-for maintaining herself and her three minor children.

The statement of the petitioner-wife Gayatri has been recorded as AW-1 and thereafter the statement of the respondent-husband Harish has been recorded as NAW-1.

In her statement, the petitioner-wife has specifically deposed that the respondent-husband is doing business of gold and silver. He also gave money on interest to the people in the form of loan and he is also doing the business of selling motorcycle and jeep.

Despite the fact, the respondent-husband is earning sufficient money, the learned Family Court has not awarded any maintenance in favour of the petitioner-wife and three minor children. The learned Family Court has held that a mediation proceeding was held between the parties only on 16.05.2017 and after conciliation the petitioner-wife was sent with the respondent-husband. Thereafter on 09.09.2017 again the husband and wife quarreled. The respondent-husband informed the Court that he tried to talk to petitioner-wife but she refused to talk with him. Thereafter the petitioner-wife started living with her parents.

The learned Family Court has held that the petitioner-wife herself does not want to live with the respondent-husband and accordingly rejected the application under Section 125 Cr.P.C. In the opinion of this Court, the findings given by the learned Family Court are baseless and deserve to be set aside.

In the result, the present revision petition is allowed. The order impugned dated 15.01.2018 is set aside. The matter is remanded back to the learned Family Court with the direction to decide the same afresh after affording opportunity of hearing to both the parties in accordance with law preferably within a period of six months from the date of receipt of certified copy of this Court.

The record of the court below be sent back forthwith.