Himachal Pradesh High Court
_____________________________________________ vs Smt. Kanchan Lata D/O Sh. Balak Ram on 21 September, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MMO No.115 of 2014
Reserved on: 8th August, 2016
.
Date of Order: 21st September, 2016
_____________________________________________
Tota Ram s/o Sh. Balak Ram
......Petitioner
Versus
Smt. Kanchan Lata d/o Sh. Balak Ram
of
.........Non-petitioner
______________________________________________
Coram
rt
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
_____________________________________________ For petitioner : Mr. Peeyush Verma, Advocate For Non-petitioner : Ex-parte vide order dated 08.08.2016 P.S. Rana, Judge Order:
Present petition is filed under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure 1973 against the order dated 25.02.2014 passed by learned Sessions Judge (Forest) Shimla (H.P.) in criminal revision No. 10-S/10 of 13/12 title Tota Ram vs. Kanchan Lata whereby learned Sessions Judge (Forest) Shimla affirmed order dated 31.03.2012 passed by learned Judicial Magistrate Ist Class 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 2
Court No.(1) Shimla in criminal petition No.31-4 of 2011/08 filed under section 125 Cr.PC.
.
Brief facts of the case:
2. Smt. Kanchan Lata filed petition under section 125 Code of Criminal Procedure 1973 for grant of maintenance allowance. It is pleaded that Smt. Kanchan Lata is legally wedded wife of Sh. Tota Ram and marriage between parties was solemnized on 07.02.2007 at Shimla as per of Hindu rites and customs. It is further pleaded that Sh. Tota Ram and his family members started maltreating Smt. Kanchan Lata and also abused rt her for bringing insufficient dowry in marriage. It is further pleaded that Sh. Tota Ram is a government employee and is working in Govt. Sen. Sec.
School Manthal at Karsog as teacher and is drawing handsome salary and has sufficient source of income to maintain Smt. Kanchan Lata. It is further pleaded that Smt. Kanchan Lata started living in her matrimonial house after her marriage and stayed in her matrimonial house for 3-4 months. It is further pleaded that Sh. Tota Ram and his family members caused mental harassment to Smt. Kanchan Lata in her matrimonial house. It is further pleaded that police complaint was also filed by Smt. Kanchan Lata against Sh. Tota Ram and his family members. It is further pleaded that compromise executed inter se parties on the intervention of the relatives and villagers but Sh. Tota Ram and his family members did not change their behaviour. It is further pleaded that Smt. Kanchan Lata has no independent source of income to maintain herself. It is further ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 3 pleaded that income of Sh. Tota Ram is more than Rs.15,000/- per month from salary and agricultural income. It is further pleaded that Sh. Tota .
Ram is under legal obligation to maintain Smt. Kanchan Lata being his legally wedded wife. It is further pleaded that Sh. Tota Ram failed to maintain Smt. Kanchan Lata. Maintenance allowance of Rs.7,000/- per month sought.
3. Per contra response filed on behalf of Sh. Tota Ram pleaded of therein that Smt. Kanchan Lata has left her matrimonial house voluntarily without any reasonable cause. It is admitted that Smt. Kanchan Lata is rt legally wedded wife of Sh. Tota Ram. It is further pleaded that Sh. Tota Ram and his family members did not demand dowry from Smt. Kanchan Lata at any point of time and did not mentally torture Smt. Kanchan Lata in her matrimonial house. It is pleaded that when Smt. Kanchan Lata came to her matrimonial house she refused to reside in her matrimonial house on the ground that matrimonial house is in dilapidated condition. It is pleaded that Smt. Kanchan Lata also disrespected the parents of Sh.
Tota Ram. It is further pleaded that Smt. Kanchan Lata left her matrimonial house after 3-4 days of marriage and started residing at her parents village. It is further pleaded that Smt. Kanchan Lata opened a training centre for sewing etc. in her parents village and did not come to her matrimonial house. It is further pleaded that Sh. Tota Ram is getting Rs.7500/- as consolidated salary per month. It is further pleaded that Sh.
Tota Ram has no agricultural income. It is further pleaded that parents of ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 4 Sh. Tota Ram are suffering from various diseases. It is further pleaded that Smt. Kanchan Lata is President of SC and ST Women's Association .
and has independent source of income. It is further pleaded that Smt. Kanchan Lata has refused to reside in her matrimonial house without any fault on the part of Sh. Tota Ram. Prayer for dismissal of petition sought.
4. Smt. Kanchan Lata also filed rejoinder and reasserted the allegations maintained in the petition. Smt. Kanchan Lata examined two of oral witnesses in support of her case. Sh. Tota Ram examined four oral witnesses in support of his case. Documentaries evidence also tendered.
rt Learned Trial Court granted maintenance allowance in favour of Smt. Kanchan Lata to the tune of Rs.3,500/- per month from the date of order.
Aggrieved against the maintenance allowance order Sh. Tota Ram filed criminal revision petition before learned Sessions Judge (Forest) Shimla (H.P.) and learned Sessions Judge (Forest) Shimla on dated 25.02.2014 affirmed the maintenance allowance order passed by learned Trial Court and dismissed the revision petition. Thereafter Sh. Tota Ram filed present petition before H.P. High Court.
5. Court heard learned Advocate appearing on behalf of petitioner Tota Ram and Court also perused the entire records carefully.
6. Following points arise for determination:
1) Whether petition filed under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of petition?::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 5
2) Final order.
Findings upon point No.1 with reasons:
.
7. PW-1 Smt. Kanchan Lata has stated that she was married with Sh.
Tota Ram in the month of February 2007 according to Hindu rites and customs. She has stated that she resided in her matrimonial house after the marriage. She has stated that after some days Sh. Tota Ram and his of family members started quarrelling with her and harassed her for bringing dowry. She has stated that she also filed criminal complaint against Sh.
rt Tota Ram and his family members and same was compromised. She has stated that Sh. Tota Ram is posted as teacher in Govt. school. She has stated that Sh. Tota Ram did not provide her maintenance allowance. She has stated that Sh. Tota Ram also has agricultural income in addition to his salary. She has stated that income of Sh. Tota Ram is to the tune of Rs.15,000/- to Rs.20,000/- per month. She has stated that maintenance allowance to the tune of Rs.5,000/- to Rs.6,000/- per month be awarded to her. She has stated that Sh. Tota Ram and his family members started beating her in her matrimonial house after one week of marriage. She has denied suggestion that she forced Sh. Tota Ram to reside in separate house. She has denied suggestion that she resided in her matrimonial house only for four days. She has denied suggestion that monthly salary of Sh. Tota Ram is Rs.7500/- per month. She has denied suggestion that Sh. Tota Ram is not owner of 10 bighas of agricultural land. She has admitted that she remained President of SC and ST Women's Association.
::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 68. PW-2 Sh. Balak Ram Dogra has stated that Smt. Kanchan Lata is his daughter and she was married with Sh. Tota Ram in the month of .
February 2007 according to Hindu rites and customs. He has stated that his daughter resided in her matrimonial house after marriage. He has stated that after marriage Sh. Tota Ram did not properly behave with his daughter. He has stated that matter was also reported in Gram Panchayat. He has stated that income of Sh. Tota Ram is Rs.10,000/- to of Rs.12,000/- per month. He has stated that Smt. Kanchan Lata is house wife. He has stated that Smt. Kanchan Lata is residing in her parental rt house. He has stated that Sh. Tota Ram did not maintain his legally wedded wife and harassed her. He has stated that Smt. Kanchan Lata is graduate and she also remained President of SC and ST Women's Association. He has denied suggestion that Smt. Kanchan Lata started quarrelling with her husband and his family members after 3-4 days of marriage. He has denied suggestion that Smt. Kanchan Lata demanded separate house. He has denied suggestion that Smt. Kanchan Lata is running a sewing centre. He has denied suggestion that income of Sh.
Tota Ram is Rs.7500/- per month.
9. RW-1 Sh. Tota Ram has stated that he is posted in education department on contract basis. He has stated that Smt. Kanchan Lata is his wife. He has stated that marriage was performed on 07.02.2007. He has stated that his mother is also residing with him. He has stated that his father had died three years ago. He has stated that his monthly salary is ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 7 Rs.13,000/- as of today. He has stated that Smt. Kanchan Lata resided in her matrimonial house for 2-3 days and thereafter started residing in her .
parental house. He has stated that dowry was not demanded from Smt. Kanchan Lata at any point of time. He has stated that he tried his best level to bring Smt. Kanchan Lata to her matrimonial house but she refused to reside in her matrimonial house. He has stated that Smt. Kanchan Lata is posted in IGMC Shimla and is drawing Rs.5500/- per of month. He has stated that Smt. Kanchan Lata could maintain herself. He has denied suggestion that his salary is Rs.20,000/-. He has denied rt suggestion that he is earning Rs.10,000/- from agriculture.
10. RW-2 Sh. Bhim Singh has stated that he remained Pradhan Gram Pamchyat w.e.f. 2006 to 2011. He has stated that Sh. Tota Ram is known to him. He has stated that Sh. Tota Ram has filed application Ext.RW-1/A for registration of marriage. He has stated that marriage could not be registered because both parties did not appear before panchayat. He has stated that Smt. Kanchan Lata did not reside in her matrimonial house. He has stated that he pursuaded Smt. Kanchan Lata to reside in her matrimonial house but she did not reside in her matrimonial house. He has denied suggestion that he is deposing in favour of Sh. Tota Ram because Sh. Tota Ram is his panchayat voter and supporter.
11. RW-3 Sh. Bhoop Singh has stated that Sh. Tota Ram is his younger brother and he is residing with his mother. He has stated that Smt. Kanchan Lata resided in her matrimonial house for 2-3 days after ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 8 marriage and thereafter she resided in her parental house. He has stated that Smt. Kanchan Lata came to her matrimonial house after one and half .
year and thereafter resided for 5-6 days and thereafter she resided in her parental house. He has stated that Smt. Kanchan Lata was not harassed in her matrimonial house. He has stated that Smt. Kanchan Lata has voluntarily left her matrimonial house. He has stated that he is residing separately from Sh. Tota Ram. He has denied suggestion that Sh. Tota of Ram and his parents used to beat Smt. Kanchan Lata in her matrimonial house. He has admitted that after marriage Smt. Kanchan Lata has no rt sufficient income and she resided as house wife. He has admitted that Smt. Kanchan Lata has no source of income to maintain herself.
12. RW-4 Sh. Gian Chand has stated that he attended the marriage of parties. He has stated that Smt. Kanchan Lata resided in her matrimonial house for 2-3 days and thereafter he alongwith S/Sh. Tota Ram, Bhoop Singh and Parkash went to the parental house of Smt. Kanchan Lata. He has stated that Smt. Kanchan Lata came to her matrimonial house after one and half year and resided for 2-3 days and thereafter she went to her parental house. He has denied suggestion that he did not visit parental house of Smt. Kanchan Lata.
13. Following documentaries evidence filed by parties. (1) Ext.PW1/A is marriage card. (2) Ext.PW1/B is certificate of marriage issued by Secretary Gram Panchayat Shakorl. (3) Ext.PW2/A is affidavit given by Sh.
Raju. (4) Ext.RW1/A is application. (5) Mark PA is criminal complaint filed ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 9 by Smt. Kanchan Lata against Sh. Tota Ram and his family members. (6) Mark PB is application filed by Smt. Kanchan Lata to SHO Police Station .
Karsog against Sh. Tota Ram and his family members.
14. Submission of learned Advocate appearing on behalf of petitioner that learned Addl. District Judge Mandi (H.P.) (Camp at Karsog) granted divorce to Sh. Tota Ram against Smt. Kanchan Lata in HMA No.42 of 2010 decided on 09.10.2012 on the ground of cruelty and desertion and on this of ground maintenance allowance granted to Smt. Kanchan Lata is liable to be cancelled under section 125(5) Code of Criminal Procedure 1973 is rt accepted for reasons hereinafter mentioned. It is proved on record that learned Addl. District Judge Mandi (H.P.) (Camp at Karsog) on 09.10.2012 dissolved marriage inter se parties on the ground of cruelty and desertion.
It is proved on record that learned Addl. District Judge Mandi (H.P.) (Camp at Karsog) has held in HMA No.42 of 2010 that Smt. Kanchan Lata has committed cruelty and desertion upon Sh. Tota Ram. Findings of cruelty and desertion against Smt. Kanchan Lata by civil Court has attained stage of finality. Smt. Kanchan Lata has not challenged decree of cruelty and desertion passed by learned Addl. District Judge Mandi (H.P.) before any competent Court of law. It is well settled law that parties cannot be allowed to take advantage of their own wrong. It is held that in view of the fact that cruelty and desertion is proved in HMA No.42 of 2010 title Tota Ram Vs. Kanchan Lata on the part of Smt. Kanchan Lata it is expedient in the ends of justice to cancel maintenance allowance granted ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 10 under section 125 Cr.PC. Court take judicial notice of cruelty and desertion on the part of Smt. Kanchan Lata as held in HMA No.42 of 2010 .
decided on 09.10.2012. Judgment and decree passed in HMA No.42 of 2010 against Smt. Kanchan Lata relating to cruelty and desertion are relevant facts under section 41 of Indian Evidence Act 1872. Maintenance allowance granted to Smt. Kanchan Lata is liable to be cancelled under section 125(5) Code of Criminal Procedure 1973. See 1981 Criminal Law of Journal 1467 title Teja Singh Vs. Chhoto. See AIR 1970 P&H 515 title Baldev Singh Vs. Pushpa Ram. See AIR 1966 All 133 title Ravindra rt Kaur vs. Achant Swarup. See AIR 1965 Gujarat 247 title Datiyalal Vs. Bai Kanta. See 1995 Criminal Law Journal 1187 in the matter of Rabindra Nath Rao.
15. Even as per testimonies of RW-1 Tota Ram, RW-2 Bhim Singh, RW-3 Bhup Singh and RW-4 Gian Chand it is proved on record beyond reasonable doubt that Smt. Kanchan Lata has resided in her matrimonial house only for 3-4 days and thereafter without any sufficient reason Smt. Kanchan Lata refused to live with Sh. Tota Ram as mentioned under section 125(5) Code of Criminal Procedure 1973. In view of above stated facts point No.1 is answered partly in affirmative.
Point No.2 (Final Order).
16. In view of findings upon point No.1 above present petition filed under Article 227 of Constitution of India read with section 482 Code of Criminal Procedure 1973 is partly allowed. Maintenance allowance granted ::: Downloaded on - 15/04/2017 21:16:21 :::HCHP 11 to Smt. Kanchan Lata is cancelled under section 125(5) Code of Criminal Procedure 1973 w.e.f. 21.09.2016. Order of learned Trial Court and .
learned Sessions Judge (Forest) Shimla are modified accordingly. Record of learned Trial Court and learned Sessions Judge (Forest) Shimla (H.P.) be sent back forthwith alongwith certified copy of order for compliance.
Cr.MMO No. 115/2014 is disposed of. Pending application(s) if any also disposed of.
of
rt (P. S. Rana),
September 21, 2016 Judge.
(rana)
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