Smt. Shashi Prabha vs Shyamlal Kushwaha

N.K. Gupta, J.—The applicant has preferred the present revision being aggrieved with the order dated 8.5.2013 passed by the First Additional Principal Judge, Family Court, Jabalpur in MJC No. 44 of 2012 whereby the application u/s 125 of the Cr.P.C. filed by the applicant was dismissed. Facts of the case in short is that the applicant has preferred an application u/s 125 of the Cr.P.C. against the respondent, with the pretext that her marriage took place on 13.5.2005 with the respondent and after 5-6 years of marriage, since no child was born the behavior of the respondent as well as the family members became harsh with the applicant and therefore, they were torturing the applicant. In the month of October, 2011 she was sent back to house of her father. Actually, she was assaulted by the respondent and his family members and she was ousted. In the entire night, she remained in the backyard of the house and on the next day in the morning she called her brother Shivnandan, who took her to his house. The applicant has pleaded that the respondent was in service at Delhi and earning a sum of Rs. 11,000/- per month and also he has some agricultural land, by which he was getting an income of Rs. 50,000/- per annum. Also the respondent constructed a house at Village Ghosiyari (Police Station Gurh, District Rewa) and therefore, she claimed for maintenance of Rs. 5000/-.

The respondent in reply denied all the allegations. He has pleaded that he was working at Delhi. He was doing the job of labourer and therefore, he was earning Rs. 50-60/- per day. On the contrary, she was residing with her brother and by work of stitching, she was earning a sum of Rs. 8000-9000/- per month. Specifically, it was pleaded by the respondent that the applicant was interested to live in the township of Jabalpur, especially with her sister and therefore, she was in habit to threaten the respondent that, if he does not go and reside with her at Jabalpur then she would commit suicide. In the year 2010, the respondent went to Jabalpur along with the applicant and resided in a rented house at Ranital, Jabalpur but, it was habit of the applicant to visit the house of her brother-in-law and when the respondent came back to his house, he found that the house was locked and no arrangement for his dinner etc. was made by the applicant. Ultimately, after residing for 4-6 months at Jabalpur, the respondent took the applicant back to his village but, the applicant went to the house of her father, after taking all her ornaments.

The learned Additional Principal Judge, Jabalpur after considering the evidence adduced by the parties, dismissed the application u/s 125 of the Cr.P.C. filed by the applicant.

I have heard the learned counsel for the applicant on admission.

In the present case, the trial Court found that the applicant was not competent to maintain himself. However, he has also noticed that the respondent was incompetent to give any sum to the applicant. Such finding appears to be erroneous. It is true that the applicant could not prove that the respondent was working at Delhi or he was earning a salary of Rs. 11,000/- by that job. Similarly, no document relating to agricultural property was shown and therefore, it can be presumed that the respondent, has no source of income through the agricultural property. Shashi Prabha (P.W. 1) and her witness Shivnandan Kushwaha (PW2), could not show any substantial evidence in that respect. It was cleared by Jamuna Prasad (DW2) that house was constructed by Jamuna Prasad, father of the respondent, and respondent was working as a laborer and earning an average of Rs. 60/- per day. Under such circumstances, the monthly income of the respondent could be assessed to be Rs. 1500/- per month and after deduction of his expenditure, he could provide a sum of Rs. 750/- per month to the applicant and therefore, looking to the dependency of the applicant, she could get a sum of Rs. 750/- as maintenance, if her application u/s 125 of Cr.P.C. is allowed. It was expected from the learned Additional Principal Judge, to assess the dependency of the applicant and the amount of maintenance, which could be given to the applicant.

The main contention of the respondent was related to the fact that the applicant left his house, without any sufficient reason. Shashi Prabha (P.W. 1) and Shivnandan (PW2), have stated that a quarrel took place between the respondent and his family members with the applicant because no child was born in 5-6 years of her marriage and therefore, the applicant was thrown away from the house of the respondent in October 2011. It was pleaded by the applicant that, she was ousted from the house in the night and she remained in the backyard for entire night and therefore, in the next morning, she called her brother and he took her to his house. However, Shivnandan (PW2) could not confirm the fact that the applicant was ousted in the night and he went on the call given by the applicant. If the applicant was being tortured by the respondent and his family members on the ground that she did not have any child, then she should have visited the house of her brother for so many times with the complaint about that fact and her brother Shivnandan would have mediated between them but, Shivnandan has accepted in the cross examination that he visited the house of the applicant for two times in the year. He had no personal knowledge about any harassment to his sister.

A suggestion was given to Shashi Prabha as well as to Shivnandan, that the respondent took the applicant to Jabalpur and they resided at Jabalpur for 5-6 months. The applicant has hidden the fact that the respondent took her to Jabalpur for 5-6 months in the year 2010. Under such circumstances, the allegation made by the respondent appears to be correct that the applicant wanted to reside at Jabalpur and ultimately, she is residing at Jabalpur, with her brother-in-law. No reason has been shown by the applicant that, if the respondent took her to Jabalpur, then what problem arose at Jabalpur, so that he went back to his village. Silence of the applicant on this point indicates that the allegation made by the respondent is correct, that at Jabalpur the applicant was in habit to go to the house of her brother-in-law and she did not take care of the respondent about his dinner etc. Specifically the allegation made by the respondent that when he came back to the house, often he found that it was locked and he had to wait for return of the applicant. Such type of activity done by the applicant does not show that, she was a responsible wife. If the respondent came to Jabalpur on the instigation of the applicant, then it was the duty of the applicant to provide some comfort to the respondent, so that he could continue at Jabalpur.

Under such circumstances, where the applicant kept silence about the reason as to why they went back to the village from Jabalpur, it appears that the applicant wanted to reside at Jabalpur but, not with the respondent and she did not fulfill her duties towards the respondent at Jabalpur. If the contention of the applicant is considered then, it would be apparent that the respondent took her to Jabalpur after five years of her marriage and if she was harassed because she was not blessed with a child then the respondent would have not visited Jabalpur with her according to her wishes.

Hence, there was no harassment to the applicant in five years of her marriage due to the reason that she was not blessed with a child, then suddenly after returning from Jabalpur, there was no possibility that such type of harassment begins thereafter, done by the respondent or his family members. The applicant gave a fixed period that she was ousted from the house of the respondent in October, 2011 but, if she was ousted from the house, in such a position then either she would have lodged an FIR against the respondent and his family members or her brother would have called a Panchayat of their caste for resolution. When talk took place between the brother of the applicant and father of the respondent, then such talk should either have taken place between respectable persons of their caste but, neither any step was taken by the applicant nor by her brother. It indicates that to show that the applicant had filed an application u/s 125 of Cr.P.C. within the reasonable time, a fictitious period of October, 2011 was pleaded. If there was such a fixed period during which the applicant was ousted, then why a fixed date could not be given by the applicant or her brother of that ouster. Such type of lapse in the pleadings indicates that no such incident took place in October, 2011. The applicant was the person who, left the house of the respondent when respondent took her back to the Village from Jabalpur and thereafter, after a lapse of some months, she has lodged an application u/s 125 of the Cr.P.C.

On the basis of the aforesaid discussion, it would be apparent that the allegations made by the respondent, appears to be correct. According to the contention of the applicant herself, she could not show any reason as to why the respondent took her back to the village after residing at Jabalpur for six months and she could not show any reason as to why such harassment started, thereafter. The applicant could not prove that she was ousted by the respondent and his family members in October 2011. On the contrary, it appears that she left the house of the respondent on her own. Her brother Shivnandan could not give any reason as to why the matter was not referred to the respectable persons of the village where the respondent and his family members were residing. No reason has been given by the applicant as to why an FIR was not lodged against the respondent. Under such circumstances, the learned Additional Principal Judge, has rightly pointed out that the applicant had no reason to live away from the respondent and therefore, it is not a case where the respondent refused to maintain the applicant. If she is residing with her brother or brother-in-law on her own whim then, she is not entitled to get the maintenance u/s 125 of the Cr.P.C. Hence the learned Additional Principal Judge, Family Court has rightly rejected the application u/s 125 of the Cr.P.C. filed by the applicant. There is no illegality or perversity visible in the order passed by the trial Court and therefore, there is no reason to accept the present revision.

Consequently, the present revision is hereby dismissed at motion stage without issuance of notice to the respondent. Copy of the order be sent to the trial court along with its record for information.