Sunil Rajak vs Manisha Rajak

N.K. Gupta, J.—The applicant has preferred the present revision being aggrieved with the order dated 16.1.2012 passed by the Second Additional Sessions Judge, Panna in Criminal revision No. 96/2010, whereby a maintenance of Rs. 1,000/- per month was granted to the respondent No. 1 in addition to the maintenance granted to the respondent No. 2 by the JMFC, Panna vide order dated 29.7.2010 in M.J.C. No. 98/2008.

The facts of the case, in short, are that, the respondents had filed an application under Section 125 of the Cr.P.C. against the applicant before JMFC, Panna that the respondent No. 1 was married with the applicant in the year 2003 and the respondent No. 2 had born. The respondents were being harassed by the applicant and his family members and ultimately two years prior to date of filing of the application, the applicant sent the respondents to house of father of the respondent No. 1. Thereafter, he never tried to get them back. On 9.7.2008, the applicant entered into a second marriage with Pan Bai D/o Lallu Rajak. Pleadings were made about the income of the applicant and expenditure of the respondents. Hence, a maintenance of Rs. 6,000/- was demanded.

The applicant in his reply denied all such allegations. He has denied that he entered into a second marriage. He has denied that he had a huge income by agriculture land or his profession of washerman. Consequently, it is prayed that the application of the respondents be dismissed.

The JMFC after considering the evidence adduced by the parties rejected the application of the respondent No. 1 but, a maintenance of Rs. 1,000/- per month was granted to the respondent No. 2.

The respondents preferred a criminal revision and the revisionary Court has also accepted the application of the respondent No. 1 and a maintenance of Rs. 1,000/- per month was granted by the revisionary Court to the respondent No. 1.

Heard the learned counsel for the parties at length.

In the present case, there are two points to be considered for its disposal. Firstly that whether the applicant is capable to pay a maintenance of Rs. 2,000/- to the respondents and secondly that the respondent No. 1 is entitled to get the maintenance from the applicant without residing with him. It should be made clear at this stage that against the order dated 29.7.2010 passed by the JMFC, Panna, the applicant did not prefer any revision before any competent Court and therefore, by his conduct now he is not competent to challenge that order in the present revision. Also, the present criminal revision filed in the year 2012 is barred by limitation against the order dated 29.7.2010 passed by the JMFC, Panna and therefore, there is no need to discuss about the maintenance granted to the respondent No. 2.

The applicant Sunil (D.W.1) has stated that he has no income from agriculture land. He has only 0.13 hectare land with him. Brothers are residing separately and he earns a sum of Rs. 40 per day by work of labour. Kanchhedi Rajak (D.W.2) has accepted in para 5 of his statement that the applicant had income of Rs. 50 per day. Vijay Singh (D.W.3) has accepted that the applicant was also doing work relating to the profession of his caste i.e. washerman. He has accepted that father of the applicant is not a sane person and therefore, he was also looking after his father. He has also stated that the applicant Sunil was residing with his mother and one brother, whereas one brother of the applicant is separated. The respondents have filed the documents relating to revenue records as Ex.P/1 to Ex.P/4 and it would be apparent that the applicant has 0.13 hectare of land in his name but, in name of his mother, there is 1.70 hectare of land and in name of his father 0.75 hectare of land is available. Only Rajjan S/o Bahorilal is separated from the family. Hence, the entire cultivation is to be looked after by the applicant on the land of his father and mother then, he is getting the earning of their agriculture land and therefore, he is not liable to maintain his parents by using his own income.

A person who is not handicapped and having good physical health, is accepted to get a minimum wages of an unskilled labourer as fixed by the Collector in that district. In the year 2009, such income was Rs. 75/- to Rs. 80/- per day and therefore, average monthly income of the applicant would be more than Rs. 2,000/- per month. It would be apparent that he has 0.13 hectare of land with him therefore, he must have some additional income from that agriculture land. According to Vijay Singh Rajput, the applicant was also doing the profession of his caste i.e. washerman and therefore, after considering the entire evidence, monthly income of the applicant appears to be above Rs. 3,500/- per month and if his expenditure is deducted then, he is competent to pay a sum of Rs. 2,000/- as maintenance to the respondent. Under such circumstances, no illegality or perversity is visible in the orders of the Courts below in assessment of the maintenance amount.

So far as the ground that the respondent No. 1 is not residing in the house of the applicant is concerned, there are counter allegations. According to the applicant, the respondent No. 1 took all her ornaments and went to her father''s house and therefore, the applicant lodged an FIR, Ex.D/1 before SHO, Police Station Amanganj. However, by perusal of that FIR, Ex.D/1, it is not clear that what was the reason, so that the respondent No. 1 left the house of the applicant. The respondent No. 1 Manisha (P.W.1) has clearly stated that after delivering a girl child, she was not able to feed the girl child and the applicant never arranged for alternate feeding and therefore, that girl child died. Again the same attitude was done by the applicant when the respondent No. 2 had born. The applicant (D.W.1) has accepted in para 8 that his first child had died because she was not properly feeded. A mother cannot deny to feed the child unless sufficient natural milk was coming out of her breast. Hence, it was the responsibility of the applicant to arrange for alternate feeding. It appears that there was a pressure upon the respondent No. 1 that she gave birth to a female child and on same reason the applicant did not make any alternate arrangement. Consequently, that first child had died. If she wanted to kill the female child then, she would have killed the second child also i.e. the respondent No. 2. Under such circumstances, it is admitted position that the applicant did not arrange for feeding of the first child in alternate manner and therefore, she had died. Such an act of the applicant was nothing but, harassment to the respondent No. 1 that she delivered a girl child. Looking to the conduct of the applicant, the statement given by the respondent No. 1 may be accepted that the applicant had tortured her when respondent No. 2 had born. Therefore, the respondents have proved that there was torture and harassment to the respondent No. 1 because she gave birth to two female children.

If such circumstances are considered in connection to the FIR, Ex.D/1 then, it appears that the applicant would have lodged such an FIR, so that he can refuse the return of ornaments of the respondent No. 1, otherwise after giving such an FIR, he did not make any effort to bring the respondent No. 1 back. Sunil (D.W.1), Kanchedi (D.W2) and Vijay Singh (D.W.3) have stated that they went from time to time to bring the respondent No. 1 but, her father did not sent the respondent No. 1. Sunil (D.W.1) has stated that parents of the respondent No. 1 were demanding a sum of Rs. 20,000/- and since that amount was not given, the respondent No. 1 had not been sent to the house of the applicant. Such a statement of the applicant is nothing but a falsehood otherwise, it would have been corroborated by remaining two witnesses examined for the applicant. Similarly, such fact would have been mentioned in the FIR, Ex.D/1 or a second FIR would have been lodged on the basis of that fact.

Kancheedi Lal, uncle of the applicant was the mediator of the concerned marriage and he has accepted that he was not residing in the village of the applicant. When he was called, he participated in their family functions and problems. It appears that after lodging of the FIR, Ex.D/1, the respondent No. 1 had lodged an application for grant of maintenance after at least one year but, in that one year, the applicant did not call any Panchayat or did not sent any notice to the respondent No. 1 or her parents. Under such circumstances, it would be apparent that the applicant refused to maintain the respondent No. 1 and therefore, she was entitled to get the maintenance without residing with the applicant.

Moreover, the respondent No. 1 has tried to prove that the applicant entered into a second marriage by execution of an affidavit. Photo copy of the affidavit was submitted before the trial Court, in which the photo of the applicant is affixed with another woman. The applicant did not deny that photo copy of the affidavit does not bear his signature. On the contrary, the trial Court did not give the permission of secondary evidence to prove that affidavit otherwise, the concerned notary would have called and that affidavit would have been proved. However, in this context, the testimony of witness Gappu Raja (P.W.3) is acceptable that the applicant is residing with one Pan Bai in his house. In this context, the denial of witness Sunil (D.W.1), Kanchedi (D.W.2) and Vijay Singh (D.W.3) cannot be trusted. When the applicant is residing with another woman then, his first wedded wife can refuse to live with him in his house along with another woman. Hence, the respondent No. 1 had a reasonable ground to live separate from the applicant and to seek maintenance. She is entitled to get the maintenance from her husband and therefore, the revisionary Court had committed no error in grant of maintenance to the respondent No. 1.

On the basis of the aforesaid discussion, there is no reason so that the present revision may be accepted. Consequently, the revision filed by the applicant Sunil Rajak is hereby dismissed with cost. He would bear his own cost and also pay the cost incurred to the respondents. Advocate fee for the respondents be added @ Rs. 5,000/-. The respondents would be entitled to recover the cost of case as an arrears of the maintenance before the trial Court.

Copy of the order be sent to both the Courts below alongwith their records for information and compliance.