Roshni vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The present Revision has been preferred by the Revisionist wife challenging the order dated 12th May, 2015, as passed in Misc. Criminal Case No. 81 of 2013, Roshni Vs. Manmohan Kala, whereby, by the order dated 12.05.2018, the learned Judge Family Court, Pauri Garhwal by the impugned order under challenge in the present Revision, i.e. dated 12th May, 2015, has rejected the application under Section 125 of the Cr.P.C., which was preferred by the revisionist wife. The Family Court, while rejecting the application under Section 125 of the Cr.P.C. has recorded a finding to the effect that despite of the best efforts and despite of there being a decree rendered in the proceedings under Section 9 of the Hindu Marriage Act by the Family Court Dwarika, New Delhi, as rendered in HMA No. 698 of 2012, for restitution of conjugal rights which was decreed on 12th March, 2013. Though the said decree was claimed by the revisionist to have been rendered ex parte but the fact remains that even an ex parte decree, which has been rendered by the Courts created under a Statute, that will continue to survive and operate until and unless the same is put to challenge before superior Court and the same is set aside by a competent superior Court on a challenge being given by the judgment debtor, which is not the case at hand because the ex parte judgment and decree as rendered in Section 9 proceedings on 12th March, 2013, it still stands good in the eyes of law and further more admittedly, when there is no recall filed by the revisionist, if she claims that the said decree was passed ex parte. She contends that she was not aware of the decree dated 12th March, 2013. This fact cannot be presumed to be apparently true for the reason that the fact of the ex parte proceedings dated 12th March, 2013 even when it was brought into the knowledge maybe at a belated stage in the proceedings before the Family Court under Section 125 Cr.P.C. or even before this Court despite of it and even thereafter the revisionist wife has not made any effort to put challenge to the ex parte decree dated 12th March, 2013, either by filing a recall application to set aside the decree or by filing an appeal against the said judgment. Thus, being a judgment debtor in the proceedings under Section 9, she was bound to comply with the decree of restitution of conjugal rights by discharging her matrimonial obligations.

There have been other collateral proceedings registered by way of Misc. Criminal Case No. 56 of 2012, Roshni Vs. Manmohan Kala, which has been preferred by the revisionist by invoking the provisions contained under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It happened so that during the proceedings of Misc. Case of No. 56 of 2012, when it was pending consideration before the Court of Additional Chief Judicial Magistrate, Kotdwar, a compromise was entered into between the parties, being paper No. 45-Ka, on 2nd December, 2014, whereby, the parties have agreed to discharge their matrimonial obligations subject to certain conditions, which was contained in the said compromise dated 2nd December, 2014.

Be that as it may. It is the contention of the learned counsel for the revisionist that in compliance of the compromise, she discharged her matrimonial obligations for same time, but then on account of eruption certain matrimonial discord, once again, she was somehow obstructed to adhere to the terms of the settlement dated 2nd December, 2014 and the allegation of revisionist is that despite of the condition imposed in the compromise, the maintenance as settled and directed to be paid @ Rs.14,000/- was not remitted by the respondent/husband to the revisionist.

The veracity of the compromise dated 2nd December, 2014, is not disputed by any of the parties to the proceedings. But, the fact remains that it was only an interim arrangement, which was made during pendency of Criminal Misc. Case No. 56 of 2012. What is important to be considered here at this stage is that even the Criminal Misc. Case No. 56 of 2012, as preferred by the revisionist under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the same has been dismissed by the Court of Additional Chief Judicial Magistrate on its own merits by the judgment dated 30th January, 2018. While parting with the said judgment, the Court of Additional Chief Judicial Magistrate did remark or record any finding upon the settlement dated 02.02.2014, which was entered into between the parties during the pendency of the principal proceedings but, ultimately, while rendering its final judgment, the Court has not taken it as to be a foundation for deciding the proceedings under Section 12 of the Act based on the so called settlement entered between the parties during its pendency. Even so much so, if the judgment dated 30th January, 2018, is taken into consideration, if at all the compromise dated 2nd December, 2014 was taken as to be apparently true and inter se, it was an accepted settlement between the parties, in such an eventuality, atleast the Court of Additional Chief Judicial Magistrate could not have rejected the application under Section 12 filed by the revisionist on its own merits. Since no reference has been made in the judgment after taking the compromise dated 2nd December, 2014, as to be a foundation for deciding the application under Section 12 of the Act, hence, under the principle of merger, any interlocutory order, which is passed during the pendency of the principal proceedings by way of Case No. 56 of 2012, that will loose its significance as the interlocutory order of settlement dated 2nd December, 2014, has lost its significance with the final adjudication of the case on 30th January, 2018, under the principle of merger.

It is not only that, it is at the behest of the revisionist only that being aggrieved against the judgment dated 30th January, 2018, as passed by the Additional Chief Judicial Magistrate, Kotdwara, Pauri Garhwal, rejecting the application under Section 12, the revisionist has preferred a Criminal Appeal No. 7 of 2018, Roshni Vs. Manmohan Kala. The said Criminal Appeal too was considered by the Court of Additional Sessions Judge, Kotdwara and the appellate court while affirming the order dated 30th January, 2018, has remitted the matter back to the learned Trial Court . These orders dated 30th January, 2018 and 8th July, 2019, which was passed under the proceedings initiated at the behest of the revisionist since has attained the finality and the same has not been questioned by her before any superior Court and, hence, it would be deemed that Section 12 proceedings has been decided against her and which has attained the finality and consequently, the compromise too, which has been rendered in the proceedings under Section 12 of the Act will loose its significance.

Ultimately, the revisionist/ wife has preferred an application under Section 125 of the Cr.P.C. for grant of maintenance, which was registered as Misc. Criminal Case No. 81 of 2013, Roshni Vs. Manmohan Kala. The said application was considered by the Judge, Family Court, Pauri Garhwal and the same has been rejected by the order dated 12th May, 2015 and while rejecting the application, the Family Court has recorded a finding in para 25 of the said judgment, which is quoted hereunder :-

"25. इस प्रकार पत्रावली पर उपलब्ध समस्त साक्ष्यों के विवेचन के उपरान्त यह न्यायालय इस निष्कर्ष पर पहुंचा है कि विपक्षी द्वारा अपनी पत्नी के भरण-पोषण से न तो कभी इंकार किया गया है और न ही उसने अपनी पत्नी के भरण- पोषण में कोई उपेक्षा कारित की है। न्यायालय ने साक्ष्यों के विवेचन के उपरान्त यह पाया है कि प्रार्थिनी उपने विकलांग बच्यों से स्वंय दूर रहना चाहती है और इसी कारण उसने दहेज एवं मारपीट का कथानक रच कर भरण-पोषण का प्रार्थना पत्र योजित किया है। पत्रावली पर ऐसा कोई भी साक्ष्य नही है, जो प्रार्थिनी के साथ मारपीट व उसके दहेज उत्पीड़न के तथ्य को पुष्ट करता हो, जबकि इसके विपरीत पत्रावली पर उपलब्ध साक्ष्यों से यह स्पष्ट है कि विपक्षी तथा प्रार्थिनी के देनो बच्चे कु0 वैष्ण्वी ऑखो की कमजोरी के कराण एवं मास्टर वंश 100% विकलांगता के कारण अत्यन्त कष्टप्रद जीवन व्यतीत कर रहे है। फिर भी प्रार्थिनी उन बच्चों एवं विपक्षी की मदद करने के स्थान पर उपने मायके में अकेले रहकर अपने जीवन यापन हेतु भरण-पोषण चाहती है। साक्ष्यों से यह भी दर्शित हो रहा है कि विपक्षी जो कि सेना में कार्यरत है, को अपने बच्चों को अपनी 67 वर्षीय बूढ़ी मॉ के पास रखने के लिए मजबूर होना पड़ा है, क्योंकि विपक्षी उपने बच्चों को अपनी तैनाती स्थल जम्मू-कश्मीर में नही रख सकता है, तब भी प्रार्थिनी जो कि कोटद्वार में निवास करती है, द्वारा अपने बच्चों के साथ रहने के तथ्य पर विचार तक नही किया गया है। ऐसे में न्यायालय का स्पष्ट मत है प्रार्थिनी द्वारा अपने बच्चों की घोर उपेक्षा की गयी है तथा प्रार्थिनी के पास विपक्षी से अलग रहने का कोई कारण नही है तथा दहेज की मांग करना व मारपीट करने का जो आरोप प्रार्थिनी द्वारा विपक्षी पर लगया गया है, वह बनावटी दर्शित हो रहे है तथा प्रार्थिनी पत्र अन्तर्गत धारा 125 दं0प्र0सं0 1973 खारिज होन योग्य है।"

Wherein, he has apparently recorded a finding to the effect that it was an absolute and apparent dereliction on the part of the revisionist to discharge her matrimonial obligations because despite of the fact that the two children of the parties to the Revision, particularly, the son, he has been certified as to be a 100% disabled child by a disability certificate, which was issued as back as on 13th December, 2010, as a consequence of the brain stroke, which he suffered from on 29th December, 2009. Hence, as far as the status of the son's disability of 100% is concerned, since that being much prior in time to the initiation of any matrimonial proceeding inter se between the parties to the Revision, no doubt can be expressed so far the disability of the son is concerned because subsequently, the certificate issued on 13th December, 2010, stood subsequently verified by the Medical Expert on 25th August, 2011, 19 August, 2015 and subsequently on 15th November, 2017, fortifies the fact of disability of the son.

As far as the daughter is concerned, though there is no disability certificate of her's on record, as such, it is an admitted case of the counsel for the parties as well as by the parties itself, who are present before this Court that daughter too suffers from a problem of low visibility, as she has been detected as to be having -17 and -14 eye sights of the two eyes, though she is not certified to be disabled person. Be that as it may. Disability of the children, or the proceedings under Section 9 or the proceedings, which has culminated under the Domestic Violence Act on 18th July, 2019, by the Appellate Court's judgment, will have no bearing as far as the independent consideration of the application under Section 125 Cr.P.C. is concerned. Section 125 Cr.P.C. deals with the situation where the Court while considering the implication of Section 125 Cr.P.C. has to bring an application within its ambit about a deliberate negligence on part of the rival parties in performing his duties in maintaining the spouse or any other person who is dependent on him. Section 125 of the Cr.P.C. reads as under :-

"125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain.-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1 [***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.";]

Explanation.-For the purposes of this Chapter.-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

[(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month's allowance 4 [allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

Since in the instant case, the question of dependency does not come into the picture for the reason that there is a proceeding under Section 9 decided already against the revisionist and she has already recorded a statement in the proceedings that she is not willing to discharge her matrimonial obligations with the respondent/husband, coupled with the fact that which has now emerged is that the revisionist wife has already initiated the proceedings under Section 13 (i) (ia) by filing Case No. 143 of 2018 on 10th October, 2018, that in itself shows the inclination that the matrimony between the parties to the Revision has completely and emotionally broken down. In such an eventuality and particularly considering the reasoning, which has been assigned by the Family Court of Pauri Garhwal, particularly a reference may be had to para 25, which is above.

Since, there is apparent dereliction and denial to discharge the matrimonial obligations and the maintenance could only be as a consequence when the person claiming a maintenance discharges his or her obligation towards the cordial relationship of matrimony amongst themselves, and there is denial by the other spouse to maintain, this Court after hearing the learned counsel for the parties at length and also hearing the parties, who are present in person is not inclined to interfere in the impugned order dated 12th May, 2015.

Consequently, the Revision lacks merit and the same is dismissed. However, it is made clear that any finding recorded for the purposes of deciding the present Criminal Revision is independent to the proceedings under Sections 13 (i) (ia) initiated by the revisionist, which has to be decided independently based on the evidence, which is to be adduced by the parties. Consequently, the Revision fails and is accordingly dismissed.