Kanti Bai vs Ram Naresh Yadav

N.K. Gupta, J.—Vide order dated 1.10.1996, the JMFC Umariya, District Shahdol passed in MJC No.42/1996 granted the maintenance of Rs.300/- each to the applicants per month. In Criminal Revision No.201/1997, the Additional Sessions Judge Umariya, District Shahdol vide order dated 23.5.1998 confirmed the maintenance of the applicant no.2 but dismissed the order of the trial Court relating to the applicant no.1 and also dismissed her application under Section 125 of the Cr.P.C. Being aggrieved with the order passed by the revisionary Court, the applicants have preferred the present revision.

Facts of the case in short are that the marriage of the applicant no.1 took place with the respondent 6-7 years prior to the date of application under Section 125 of the Cr.P.C. One girl child was also born to the applicant no.1 and her husband. On 26.8.1996, the applicants preferred an application under Section 125 of the Cr.P.C. that the respondent ousted her alongwith her girl child from his house after beating her and he demanded some dowry from the applicant no.1 and thereafter, he assaulted her. FIR was lodged by the applicant no.1, which was registered at serial no.54/1995 and a case under Section 498-A of the IPC was initiated against the respondent. The applicant no.1 has pleaded that she was unable to maintain herself and therefore, after pleading the income of respondent, she claimed a maintenance of Rs.1500/- for the applicants.

The respondent in his replied denied the allegations made by the applicant no.1. It was pleaded that the applicant no.1 herself left the respondent''s house and no harassment was caused by the respondent. The respondent denied about his property and income therefore, he prayed to dismiss the maintenance application.

After recording the evidence of the parties, the trial Court has granted a maintenance of Rs.300/- each to the applicants per month. In revision, the Additional Sessions Judge, Umariya has set aside the order passed by the trial Court in relation to the applicant no.1 and also the application under Section 125 of the Cr.P.C. was dismissed.

In the present case, a notice of this revision was issued to the respondent, however after service of notice, he remained absent.

I have the heard learned counsel for the applicant.

In the present case, a maintenance of the applicant no.2 was granted by the JMFC against the respondent. Such order was confirmed by the revisionary Court but the respondent did not file any petition under Section 482 of the Cr.P.C. against the order of revisionary Court and therefore, he has no grievance for grant of maintenance of Rs.300/- per month to the applicant no.2. Hence, it would be apparent that expenditure of the applicants, income of the respondent etc. are settled facts and no discussion on such fact is required in the present case. The applicants have challenged the order of revisionary Court only on the ground that the revision was allowed and her application under Section 125 of the Cr.P.C. was dismissed on the ground that she had no reason to live separately.

Learned counsel for the applicants has submitted that the revisionary Court went away from the factual position. The applicant no.1 was entitled to get the maintenance in the matter because she was neglected by her husband. The cruelty was done by the respondent upon the applicant no.1 and therefore, she was entitled to reside separately. In support of his contention, he has placed a reliance upon the order passed by the Single Bench of this Court in the case of Radhamani Dhakad Vs. Sonu Balram, .

In the present case, it appears that the applicant no.1 had resided with the respondent for 6-7 years and in those 6-7 years, no dispute was reported to father of the applicant no.1 and similarly, no FIR was lodged in those 6-7 years. The respondent Ram Naresh (DW-1) and his witness Ram Kumar (DW-2) have stated that when the applicant no.1 was residing with the respondent, she had used to visit the house of one Mankeshwar Singh, who was an official in the police and when she was prohibited to visit the house of Mankeshwar Singh then, she not only left the house of the respondent but also lodged an FIR against the respondent with the help of Mankeshwar Singh and therefore, a case of offence under Section 498-A of the IPC was registered but ultimately, the respondent was acquitted in that case and it was found that the applicant no.1 was never tortured on the basis of any dowry demand.

In this contest, if the evidence laid by the applicant no.1 is considered then, evidence is away from her pleadings of the application of maintenance. It was not mentioned that what was the demand of the respondent relating to the dowry, and an omnibus allegation was made that he demanded dowry. If the applicant no.1 was residing with the respondent for seven years and there was no complaint made by the applicant no.1 to her father or lodged any FIR for cruelty or dowry demand in those seven years then, there was no reason for the respondent to start the demand of dowry after seven years of his marriage. The applicant no.1 Smt. Kanti Bai (PW- 1) has stated that the respondent told her that she was dark in colour therefore, she was ousted and also in her examination- in-chief, she did not mention about any dowry demand. On the contrary, she has stated that she was not provided food etc. When the applicant no.1 resided with the respondent for seven years then, certainly she would have made complaint in those seven years, if she was not fed properly.

On the other hand, Ramsahay (PW-3) father of the applicant no.1 has stated that the respondent gave a threat to the applicant no.1 that, she would be burnt by the respondent. But, no such allegation was made by the applicant no.1 in her statement and therefore, the allegation made by Ramsahay (PW-3) is baseless and unbelievable. Ramsahay has also stated that the applicant no.1 was not given the food and clothes by her husband, whereas Chhote (PW-2) has stated that the respondent was torturing the applicant no.1. However, it appears that he was a patent witness and he had also given his evidence in the case of under Section 498-A of the IPC.

On the basis of evidence given by the applicant no.1 and her father Ramsahay, the sole allegation was that the respondent was not giving her appropriate food and clothes. Such a situation could not be arisen after seven years of her marriage. The applicant no.1 did not plead such an allegation in her application. On the contrary, she pleaded that the respondent demanded dowry and after beating her, she was ousted from respondent''s house, whereas the applicant no.1 and her father Ramsahay did not state anything about dowry demand or the fact that the respondent had beaten the applicant no.1. There is a lot of difference between the pleadings made by the applicant no.1 and evidence given by the applicant no.1 and her father.

The applicant no.1 could not prove any of the pleadings made in the maintenance application. On the contrary, she and her father tried to state that she was kept hungry by the respondent but such version cannot be accepted, in absence of any pleading, because such version is nothing but an afterthought. If, the evidence advanced by the applicant no.1 is considered with the fact that her FIR lodged of offence under Section 498-A of the IPC was not found correct and the respondent was acquitted in the criminal case, her evidence is baseless.

On the basis of aforesaid discussion, it would be apparent that the applicant no.1 could not show any reason which amounts to be a cruelty done by the respondent towards her. Hence, the revisionary Court has rightly found that there was no reason with the applicant no.1 to live away from her husband therefore, no illegality or perversity has been done by the revisionary Court in reversing the order of the trial Court relating to the grant of maintenance to the applicant no.1. In the case of Radhamani (supra), her husband kept a woman as a mistress and her mother-in-law was troublesome to her and it was established that Radhamani was dealt with cruelty by her husband and his family members. In the present case, the factual position is different and therefore, the law laid down in the case of Radhamani (supra) cannot be applied in the present case.

On the basis of aforesaid discussion, no illegality or perversity is visible in the order passed by the revisionary Court. The applicant no.1 could not prove that she was dealt with cruelty by the respondent or the respondent demanded any dowry or beaten her so that she left the respondent''s house. Under such circumstances, she was not entitled to get any maintenance without residing with the respondent. There is no reason to accept the present revision filed by the applicant no.1 for her maintenance and hence, it is hereby dismissed. No order as to costs.

Copy of the order be sent to the Courts below alongwith its record for information.