Padmi Devi Ronka and Others vs Rikhi Ram Ronka

C.V. Sirpurkar, J.—This order shall govern the disposal of criminal revision No. 986/2006 filed on behalf of the applicants Wife and Daughter against the respondent Husband challenging the order dated 26.4.2006 passed by the Family Court Bhopal in M.J.C. No. 741/2002, whereby an application preferred by the applicants under Section 125 of the Cr.P.C. was rejected.

The case of the applicants before the learned trial Court was that applicant No. 1 Smt. Padma Devi married respondent Rikhi Ram Ronka by Hindu rites and customs in the year, 1986 at District Pyuthan in Nepal. Applicant No. 2 Beli was born to the couple in the year, 1991, who is living with the applicant No. 1. In the year, 1996 respondent Rikhi Ram Ronka came to Bhopal and has been working as a peon in Health Department ever since. He earns Rs. 5,000/- per month. However, applicants continued to live in Nepal. As the applicant Padmi Devi was turned out of her matrimonial home by her parents, she maintained herself by working in fields of other people. She wrote letters to the respondent but the respondent failed to reply to any of them. Thereafter, applicant Padmi Devi visited Bhopal along with her brother Neel Bahadur. When they went to the house of the respondent, they learnt that the respondent has kept another women Bhoomi Devi and has three children from her. Therefore, it has been prayed that respondent be directed to pay Rs. 1500/- per month to each of the two applicants by way of maintenance.

In reply, respondent has stated that the applicant Padma Devi was a divorced women. As per Nepali customs regarding divorced women, she was kept by the respondent; however, no Saptpadi was performed. After few days, respondent learnt that applicant No. 1 was a women of loose character and therefore, she was divorced by her first husband. Even after marriage to respondent, she did not mend ways and ran away to her matrimonial home, she refused to accompany respondent to Bhopal. In the result, as per Nepali custom, Headman and other Panchas of the village, got their marriage dissolved by mutual consent. The agricultural land belonging to the respondent, was divided into three parts and one them was transferred to the applicants by way of permanent alimony. One part was transferred to the present wife and third part was given to his Son Anil. The respondent was directed by the Panchayat to maintain himself from his salary.

It has also been submitted on behalf of the respondent that since the applicants have been given agricultural land by way of permanent alimony as per Nepali custom, they cannot demand any further amount by way of maintenance. It has also been submitted that the applicant is a citizen of Nepal and is therefore, not entitled to file any proceedings under Section 125 of the Cr.P.C. before a Court in India. It has also been the case of respondent before the trial Court that some persons belonging to Nepali Community in India, intimated and coerced the respondent to sign some blank papers. They also extracted an amount of Rs. 11,000/- from the respondent by way of ransom. They also compelled the respondent to pay a sum of Rs. 600/- per month for a period of about one year. Thereafter, respondent refused to pay the amount, so this application for maintenance has been filed.

The question regarding maintainability of this revision petition before an Indian Court was disposed of by learned trial Court by order dated 04.2.2005 and it has been held that the trial Court had jurisdiction to entertain the application. This finding has not been challenged on behalf of the respondent during arguments.

By the impugned order, learned trial Court held that respondent has been able to prove on the basis of the Divorce Deed (Ex.D/1, Hindi Translation Ex. D/2) that as per the Nepali custom marriage between the applicant No. 1 and respondent has been dissolved and it was agreed between the parties that 1/3rd of the land belonging to the respondent has been transferred to the applicant for her maintenance. The applicant No. 1 has also admitted in her deposition that she is living in a house given by the respondent. Learned trial Court also held that this fact was concealed by the applicant in her application. It has not been the case of the respondent that the land received by way of permanent alimony is insufficient for her maintenance. Learned trial Court has also recorded a finding after discussing the evidence that document (Ex. A/1) signed by the applicant Padma Devi and respondent Rikhi Ram Ronki on the letter head of ''All India Nepalese Unity Society'' whereby respondent had agreed on 05.06.1999 to pay Rs. 500/- per month by way of maintenance to the applicants did not represent a voluntarily agreement and was got executed by exerting pressure upon respondent by members of Nepali community.

The aforesaid findings of learned trial Court have been challenged in this revision petition mainly on the grounds that the document Annexure A/1 proved by the applicant whereby the respondent had agreed to pay Rs. 500/- per month as maintenance to the applicant was not properly considered and findings of trial Court to the effect that aforesaid document does not evidence a voluntarily agreement is without any basis and is perverse.

Having considered the rival contention, this Court is of the view that this revision petition must succeed in part for the reasons stated hereinafter: The apex Court while considering the scope of revisional powers of the Court has held in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, that Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court''. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401, Cr.P.C. conferring powers of Appellate Court on the Revisional Court for the above limited purpose. However, the provisions contained in S. 395 to S. 401 Cr.P.C. read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

It is true that this fact has not been pleaded by the applicant that she had received 1/3rd of the agricultural land belonging to the respondent as per document (Ex.D/1C -Translation Ex.D/1C) held to be proved by the respondent. However, in quasi-civil proceedings like the one under Chapter-X of the Criminal procedure, strict rules of pleading may not be applicable. Though, the respondent has stated in his examination-in-chief that under the document Ex. D/1 he had given 3 bighas of land to Smt. Padma Devi but in his cross-examination, he has admitted that out of entire three Bighas of land belonging to him, only 1 bigha was given to Padma Devi and in addition thereto she is using four rooms in the ancestral house belonging to the respondent; however, that part of the house has not been mutated in the name of applicant Padma Devi. She has stated in her deposition that the land given to her is still in the name of father of the respondent. It is un-irrigated land yielding half a bag of wheat, half a bag of maize and half a bag of paddy, per year. Thus, it is clear as day that the land applicants received from the respondent, is insufficient for her maintenance and learned Court below failed to consider this aspect of the matter.

The Court shall now consider document (Ex. A/2) which is an agreement entered into between the parties under the aegis of ''All India Nepalese Unity Society'' on 08.6.1999 whereby, respondent had agreed to pay Rs. 500/- per month to the applicant. In this regard, the stand of the respondent is that Ex.A/1 is not a voluntary agreement and he had signed it because he was under duress from the members of the ''All India Nepalese Unity Society''. He termed the amount of Rs. 500/- paid under the aforesaid agreement as Ransom.

Learned trial Court has held that since (PW/2) Narayan has admitted in his statement that after receipt of legal notice from the Advocate of the respondent they stopped demanding aforesaid amount from the respondent, it was clear that the agreement to pay aforesaid amount was not voluntary and the respondent was coerced into paying that amount.

It may be noted here that the agreement (A/2) was entered into in the presence of members of Nepali Community, to which the parties belong. It was reduced to writing and was signed by both the parties. Such an agreement cannot be avoided on the spacious plea that it was entered into due to coercion or duress. If the respondent was being coerced into signing an agreement, it was open to him to have approach the police. Learned trial Court grossly erred in presuming that the agreement was result of coercion practiced upon the respondent, simply on the basis of the fact that after receiving the legal notice, the applicants side stopped demanding maintenance from the respondent, particularly in view of the fact that soon thereafter, the matter was taken to the Court.

In aforesaid view of the matter, the finding of learned trial Court suffers from serious impropriety and consequently cannot be allowed to stand. In the result, impugned order is set aside and it is directed that the respondent shall pay to the applicants a sum of Rs. 500/- per month from the date of the order of the trial Court i.e. 26.4.2006 by way of maintenance to the applicant No. 1. The arrears shall be payable within two months from the date of this order and the monthly maintenance shall be payable by the 10th day of every succeeding month.

Respondent shall bear his own costs and those of the applicants, through out.

C.C. as per rules.