Madhya Pradesh High Court
Smt.Bhoori Bai vs Hotam Singh on 23 June, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
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Criminal Revision No.929/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.929/2014
Bhoori Bai
Versus
Hotam Singh & Others
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Shri J.P.Saxena, learned counsel for the applicant.
Shri S.S.Gautam, learned counsel for the respondents.
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ORDER
(23.06.2017) The applicant is aggrieved by rejection of her application under Section 125 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') vide order dated 30.10.2014 passed in Miscellaneous Criminal Case No.144/2014 by the Principal Judge, Family Court, Morena.
2. The facts of the case are that the applicant is admittedly wife of the respondent No.1 and remaining respondents No.2 to 4 are their children born out of their wedlock. The applicant has alleged that the respondent No.1 has a monthly income more than Rs.15000/- and the remaining respondents are also doing their business, however, the applicant is being harassed and has been thrown out of her matrimonial home and therefore she is unable to maintain herself which has prompted her to file an application under Section 125 of Cr.P.C.
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Criminal Revision No.929/2014
3. Learned court below invited the respondents to file reply and it was submitted that the applicant deserted the respondent No.1 in the year 1985 by staying away from her matrimonial house with one Shyam Singh and they lived as husband and wife. It was further stated that Shyam Singh died five years ago due to which the present applicant has now moved an application under Section 125 of Cr.P.C. for claiming maintenance from the respondents. This clearly reflects that she is not residing at her matrimonial house due to her own will and has indulgent herself in the adultery.
4. The present applicant did not furnish any documents in support of her claim with respect to earning of respondent No.1 and has only recorded her statement to establish her claim whereas the respondent has recorded the statement as well as statement of brother of the applicant.
5. Learned trial Court after weighing evidence led by both the parties pronounced the order dated 31.10.2014 and concluded that the applicant has not established the case under Section 125 of Cr.P.C. and therefore, was not entitled to the relief sought from the Court.
6. Learned counsel for the applicant has submitted that the court below has ignored the established principle of law that the provision under Section 125 of Cr.P.C. is a welfare legislation and has to be adjudicated liberally. He has further submitted that the court below has recorded the finding of adultery
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Criminal Revision No.929/2014 without there being any cogent evidence to establish the same. He has also invited the attention of this court to the statement of the brother who has not offered any explanation with respect to the effort he made for finding the present applicant after she left the house of the respondent No.1. By reading of the statement, learned counsel for the applicant has tried to emphasis on the fact that the brother of the applicant had deposed against her due to personal enmity and no credibility can be attached to his statement.
7. Per contra, learned counsel for the respondents have supported the reasoning given by the court below and have reiterated their strength before this Court.
8. I have given anxious consideration to the rival contentions canvassed on behalf of the parties and have perused the record. The most crucial question which will determine the fate of the present case is, whether the applicant has been forced by the respondents to stay away from her matrimonial house or not. Further, whether the deficiency of the documents with respect to the income of respondent No.1 defeats the application of the applicant for maintenance.
9. In order to answer the question forced above, the testimony of the applicant as well as application under Section 125 of Cr.P.C. deserves to be critically looked into. Perusal of the application under Section 125 of Cr.P.C. nowhere indicates the date on which the
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Criminal Revision No.929/2014 applicant was forced to leave her matrimonial home nor does it indicate the effort made by her to go back to the matrimonial house and there is no specific pleading with respect to the activity which is the source of income for respondent No.1. Now, the present applicant had an opportunity to fill up the lacuna by bringing on record the documents which may establish the fact that the applicant is forced to stay away from the matrimonial home and the income of the respondent No.1. However, the statement is again deficient cannot be viewed as sufficient for allowing the application under Section 125 of Cr.P.C.
10. To the contrary, the statement of the respondent No.1 and of Hari Singh who is the brother of the applicant inspired confidence and can be relied upon. In general, parlance, no brother by blood relation will depose against his real sister and if he had any reasons for doing so, it was the obligation of the applicant to have confronted the witness with those circumstances. However, the applicant has not produced any document which may establish the only suggestion to discredit the respondent's witness.
11. Perusal of both the statements made by the respondent's witness unequivocally indicate that the applicant has left her matrimonial home out of her own will and remained away out of her own volition. It is also pertinent to consider that the application is vague and obligation/burden imposed by Section 125 of Cr.P.C. has not been discharged at all. If this Court tried to find any circumstances which may support the
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Criminal Revision No.929/2014 case of the applicant then this Court will require to venture into many assumptions and presumptions and it is well settled principle of law that no such endeavour should be made and the Court should have unbiased and gender-natural perception about the matter in order to fortify the above stated discussion. At this juncture, it is pertinent to note that the observation made by Supreme Court in the case of Chaturbhuj Vs. Sita Bai, 2008(2) SCC 316 wherein it has been held that :-
7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself.
12. Taking note of the reproduced portion of the said judgment, it is clear that the primary obligation is on the wife which, in the considered opinion of this Court, has not been adequately discharged and therefore, there is no occasion to take a different view which has already been taken by the Court below.
13. Lastly, with respect to the contention of the
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Criminal Revision No.929/2014 applicant regarding the finding of adultery recorded by the court below, this Court has carefully considered the impugned order and is of the view that there is no specific finding which has been recorded by the court below which may cast any stigma on the applicant. Therefore, there is no requirement to examine this contention as the same would be mere academic value.
14. Before parting, it is observed that in the event of the applicant resorting to the remedy available under the Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 against the respondents No.2 to 4, the same shall be decided on its own merits without being influenced by the observation made in the order.
15. With these observations, the criminal revision is dismissed being devoid of merits.
(S.K.Awasthi) Judge AK/-