Madhya Pradesh High Court
Smt. Asha Hathel vs Shri Kailash Prasad Hathel on 25 July, 2019
Equivalent citations: AIRONLINE 2019 MP 897
HIGH COURT OF MADHYA PRADESH; JABALPUR
Cr. Revision No.1171/2016
Smt. Asha Hatel
Vs.
Kailash Prasad Hatel
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Present : Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Name of counsel for the parties:
Miss. Renu Agrawal, counsel for the petitioner.
Shri Chandrapal Singh Parmar, counsel for the respondent.
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ORDER
(Delivered on 25.07.2019)
1. This revision has been filed by the applicant under Section 397 read with Section 401 of Cr.P.C., being aggrieved by the order dated 04.04.2016 passed in MJC No.44/2013 by Addl. Principal Judge, Family Court, Jabalpur whereby the application filed by the applicant under Section 125 of Cr.P.C., has been dismissed.
2. Facts giving rise to this revision, in short are that, the applicant got married with the respondent on 05.07.1982 as per Hindu rites and rituals. Four children were born out of the wedlock, but lateron the respondent/husband contacted the another lady and developed illicit relations with her. When the applicant opposed that act, then the respondent got annoyed and harassed her and thereafter, the respondent left the applicant/wife and after some time when the applicant along 2 with child went to the house of respondent, he did not allow to enter into the house and expelled them. After that, the applicant lodged a written report on 24.01.1999 against the respondent in Police Station Chirmiri District Koriya, Chhatisgarh. The applicant is not having any means of earning and submit an application under Section 125 of Cr.P.C., for getting maintenance allowance.
3. The respondent filed a petition under Section 13 of the Hindu Marriage Act registered as Civil Suit No.20A/2002 and got succeeded to have a exparte decree of divorce against the applicant. She filed an application under Order 9 Rule 13 of CPC for quashing of the exparte decree of divorce. The applicant/wife since 1999 is trying to contact the respondent for getting justice and after the advise of one lady applicant filed an application under Section 125 of Cr.P.C. that application was dismissed in default and again filed repeat application under Section 125 of Cr.P.C., but learned Family Court dismissed the application vide order dated 04.04.2016, that impugned order is agitated on the ground that the learned Family Court dismissed the application on the ground that application filed in a very belated stage and applicant failed to explain how she managed herself during that period. The Family Court did not consider the fact that respondent is living with another women, this is sufficient ground to leave the company of the respondent. Learned trial Court erred in dismissing the application, prays to set 3 aside the order dated 04.04.2016 and pass the order of maintenance.
4. Counsel for the respondent submit that the order of the Family Court is well reasoned order discussed every aspect of the matter and ultimately found that the application had been filed under Section 125 of Cr.P.C., at very belated stage, the applicant could not explain that how she maintained herself for the last 20-23 years. Her first application filed under Section 125 of Cr.P.C., registered as MJC No.475/02 was dismissed on 10.10.2002 for non-appearance but the applicant did not take any action against that order and since then she never applied for maintenance. This is sufficient reason for dismissing the application and prays to dismiss the petition.
5. Having heard both the parties, perused the impugned order dated 04.04.2016 and also perused the evidence adduced by both the parties.
6. Applicant examined herself as a witness No.1. She stated when her husband keep the another woman and expelled her, then she came to Jabalpur and contacted Advocate Raman Patel, and filed an application under Section 125 of Cr.P.C. The Court ordered Rs.4000/- per month maintenance for the child but lateron that case was dismissed in default. After that she did nothing and sit at home, but lateron when she contracted with another Advocate Smt. Renu Agrawal, then she filed another application under Section 125 of Cr.P.C. This witness nowhere stated that his son was maintaining her and when he expelled her, then 4 she filed another application because she was not having any means to maintain herself.
7. Perused the application filed by the applicant. In this application, the applicant no where pleaded that she had filed an previous application under Section 125 of Cr.P.C., and it was dismissed in default in 2002 and after that her son maintaining her and when he expelled her, she filed another application. No doubt, the applicant has filed this application under Section 125 of Cr.P.C., at very belated stage and could not explain that for that period how she maintained herself. No doubt, husband/respondent is under obligation and duty bound to maintain his wife, if she is not having any means of earning to maintain herself.
8. In the impugned order, learned Family Court in para 11 concluded that the applicant failed to prove that she is unable to maintain herself and for reaching this conclusion, discussed the evidence in para 7, 8, 9 and 10 of the judgment. Witness Rohit stated that her mother is working in GCF Factory, Jabalpur and earning Rs.4,000/- to 5,000/- per month. Neither any appointment order nor any salary slip produced by the non- applicant to prove that the applicant is having any permanent source of income and getting permanent salary. If she was left for starvation, then she would do some thing for living. It does not mean that she is having permanent source of income. The findings recorded by the Family Court is erroneous. Filing of application under Section 125 of Cr.P.C., at very 5 belated stage is not a ground for dismissal of the application. Whenever money is required for maintaining herself, she can file an application under Section 125 of Cr.P.C. against the respondent/husband.
9. Considering all these facts, this Court find that the order passed by the Family Court is perverse and erroneous. Consequently, this revision is allowed and the impugned order dated 04.04.2016 is hereby set aside. The case is remitted back to the Family Court with a direction to provide opportunity of adducing evidence, reconsider the evidence and decide the matter afresh without being prejudiced of the observations/discussions made in this order. No order as to the costs.
(Vishnu Pratap Singh Chauhan) Judge pb Digitally signed by PRASHANT BAGJILEWALE Date: 2019.07.26 16:27:00 +05'30' HIGH COURT OF MADHYA PRADESH; JABALPUR Cr. Revision No.1171/2016 Smt. Asha Hatel Vs. Kailash Prasad Hatel ORDER POST FOR: .07.2019.
(Vishnu Pratap Singh Chauhan) Judge .07.2019.
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In order to smooth functioning of the court
following arrangement has been made
11.00 Addl. Staff
to [Reserved time]
12.00
Turn of Chambers:
In case Hon'ble Calls for chamber dictation
preferably first Addl. Staff (Ladies) will take the diction so that they may get free as early as possible.