@JUDGMENTTAG-ORDER
Hon''ble Shri Justice M.A. Siddiqui
1. This Criminal Revision u/s 397 read with Section 401 Code of Criminal Procedure, 1973 (hereinafter referred to for short, " Cr. P. C".) preferred by the applicant/husband, being aggrieved from the order dated 17.3.2011, passed in Cri. Revision No. 182/2010 by learned Sessions Judge, Chhindwara arising out of judgment/order dated 17.9.2010 of learned J.M.F.C. Chhindwara in Cri. Case No. 76/08, by which application u/s 125 Cr. P.C. filed by respondent was rejected by JMFC and allowed by learned Sessions Judge hence this revision has been preferred in order to quash the order of learned Sessions Judge by which maintenance of Rs. 1,000/- per month has been awarded to respondent from applicant. In nutshell case is that respondent Smt. Vandana filed an application u/s 125 Cr. P.C. for getting maintenance alleging that she is legally wedded wife of applicant and their marriage was solemnized on 8.3.1995 at village Guraya, Tahsil Chourai, District Chhindwara. After marriage she started living with applicant at village Chikni district Itawa U.P. But applicant used to demand dowry and used to beat her. Somehow she lived with applicant for a period of six years and was thereafter she was ill treated and was forced to leave the house of applicant. She came to reside her parent at village Guraya, Tahsil Chourai, District Chhindwara. When she has no separate income and applicant has 40 acres of irrigated landat village Chikni district Itawa U.P., instead he is neglecting respondent for her maintenance so she filed an application u/s 125 Cr. P.C.
2. Applicant replied to the application u/s 125 Cr. P.C. and stated that he never demanded any dowry from respondent. He further denied beating her. Respondent is residing with her parents of her own will without any cause. She earns a sum of Rs. 4000/- by stitching clothes and also makes a handsome income of Rs. 10,000/-per month from the farming on the land of her parents. Even after passing a decree u/s 9 of Hindu Marriage Act for restitution of conjugal rights she is avoiding to reside with him and she has left the company of applicant for more than thirteen years and she is not entitled to get any maintenance.
3. Learned J.M.F.C. after recording the evidence of both the sides disallowed the claim of respondent on the ground that she herself had at fault and she is residing separate without any proper and just cause with her parents by deserting applicant who wants to keep her as his wife. Against which respondent filed a criminal revision before Sessions Court, Chhindwara bearing number Cri. Rev. No. 182/10. After hearing both the parties vide order dated 17.3.2011 learned Sessions Judge by quashing the order of learned J.M.F.C. Allowed the revision and granted maintenance of Rs. 1,000/- per month from the date of order against the order applicant filed this revision on these grounds:
A. The judgment and order passed against the present applicant is totally uncalled for and is bad in law and in facts.
B. The respondent has very categorically stated in her evidence that she does not want to cohabit with the applicant. The applicant has been making constant endeavors to bring her back but of no avail.
C. The applicant had filed a suit for restitution on 28.07.08 against the respondent, but despite this she is not cohabiting with her. It is sufficient to prove that she has left him without any sufficient cause.
D. It has also been stated by the respondent in her statements that there has never been any report lodged against the applicant. It clearly demonstrates that the applicant never demanded any dowry or beat her.
E. She has clearly stated in her statements that she makes a living by farming on the land of her parents. It goes to show that she has sufficient means to make a living. On the contrary the respondent had failed to demonstrate that there is any land in the name of the applicant.
F. The learned Sessions Judge has failed to appreciate all these aspects and has simply passed the order for the grant of Rs. 1,000/-towards maintenance without discussing the marits.
G. The learned Court below has failed to see the considerable amount of delay in filing the application. It shows the conduct of the respondent, that just to evade from the judgment against her u/s 9 of the Hindu Marriage Act, she had moved the application for the grant of maintenance.
4. I have heard both the sides and perused the record.
5. The main question for consideration are:
(i) Whether learned Sessions Judge has erred in setting aside the order of J.M.F.C.?
(ii) Whether the order of learned Sessions Judge is interferable or this revision is acceptable?
6. Learned Counsel for applicant has submitted that learned Sessions Court has erred in marshalling and appreciating the evidence of both the sides. It has been further vehemently argued that as per admission of respondent Smt. Vandana, it is very much clear that she never lodged any report against demand of dowry or against ill-treatment and her ground for separate residing is that applicant''s unmarried brothers are there and she has danger that if she goes to live with applicant all brothers of applicant will make her their wife but this ground was not made in the application and more over she has admitted that she asked applicant to live with her at Chhindwara as there was nobody to look-after the parents of wife but he refused.
7. Learned Counsel for the applicant has also vehemently argued that for more than 10 years no maintenance ever claimed and there was decree of conjugal rights which she does not want to comply and she has admitted in her cross-examination in paragraph no. 8 that she does not want to live even after full assurance and main cause of dispute is that applicant does not want to live with her at her (Mayaka) maternal house at Chhindwra district. It has also been argued that there is a decree of Conjugal right though ex-parte decree is there but this ground has not been referred by learned Sessions Judge. It has also been argued that learned J.M.F.C., before whom evidence was led has very clearly appreciated the evidence of both the sides and concluded that wife is living by deserting applicant without any just and proper cause. Reliance has been placed in case of
8. Learned Counsel for the applicant has submitted that it has been proved by evidence of applicant that he tried his best to bring his wife at his residence but she is residing separately without any cause. In this respect evidence of applicant Suresh and Jamuna Das is there.
9. On the other hand, there is evidence that she has admitted that there is no body to look after her parents hence she is residing maternal home (Mayka) and she does not want to go to the place of husband in any condition.
10. Learned Counsel for the respondent has by placing reliance in the case of Amol Kumar Shrivastava & Ors. v. State of U.P. & Ors. (AIR 2009 (NOC) 497 (Allahabad High Court) in which it has been held that Ex-parte decree of restitution of conjugal rights has been obtained against wife, no intimation of said decree given to wife by her husband or any other person on his behalf, decree also not got executed under Order 21 Rule 32 CPC, in such case, wife would not become disentitled to grant maintenance allowance from her husband on account of non-compliance of ex parte decree for restitution of conjugal rights on her part.
11. As per above discussion, respondent herself has clearly stated that she does not want to go and live at the place of husband in any condition and she wants only getting maintenance, it seems that to get maintenance is the only cause for teasing husband. Wife herself is at fault is at her own will is living separately without justification, is not entitled to get any maintenance. She has also admitted in paragraph 4 of her evidence that her parents are old and they can not do cultivation so she is doing cultivation over their land and in paragraph 6 she has admitted that her husband tried to bring her once and second time he called Panchayat at her village. The only reason which she assigned for not residing with applicant is that all unmarried brothers of applicant will keep her as their wife which is not seems to be natural and against the pleadings it seems to be after thought.
12. As per above discussion, learned Sessions Court has not appreciated the evidence of both the parties and came on the wrong conclusion. On the other hand, learned J.M.F.C. has very well appreciated the evidence in his order and came to right conclusion that wife/respondent is residing separately without just and proper cause at her maternal home (Mayka) and looking after her parents and doing cultivation on the land of her parents and she wants that applicant/husband should come and reside with her at her maternal home (Mayka) at Chhindwara district of which he refused. It seems that wife wants to dictated her terms which is not possible for applicant/ husband to whom there is liability of maintaining his old parents and unmarried brothers. In the result, order dated 17.3.2011, passed in Cri. Revision No. 182/2010 by learned Sessions Judge, Chhindwara granting maintenance of Rs. 1,000/- per month to wife by appellant/husband is against the facts and circumstances of the case and is hereby quashed; and order dated 17.9.2010 of learned J.M.F.C. Chhindwara in Cri. Case No. 76/08, by which application u/s 125 Cr. P.C. filed by respondent/wife was rejected, is hereby restored.
Revision allowed.
