Madhya Pradesh High Court
Anil Kachwaha vs Smt.Sunita Kachwaha on 26 June, 2008
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Revision No.2303/2007
Anil Kachwaha
............ Petitioner
vs.
(1) Smt. Sunita Kachwaha
(2) Ku. Ankita Kachwaha
(3) Ku. Akshita Kachwaha
......... Respondents
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Shri Pankaj Dubey, Advocate for the petitioner.
Shri Atul Choudhary, Advocate for the respondents.
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O R D E R
(26.06.2008) This revision has been preferred against the maintenance order-dated 29.10.2007 passed by Second Additional Principal Judge, Family Court, Jabalpur in M.J.C. No.425/2007, requiring the petitioner to pay a monthly sum of Rs.8000/- (Rs.3000/- for respondent no.1 (for brevity "R1") and Rs.2500/- each for the re- spondent nos.2 and 3 (for short "R2 and R3") as maintenance al- lowance under Section 125 of the Code of Criminal Procedure.
2. The following facts are not in serious dispute:
(i) On 05.02.1996, the marriage of R1 was solem-
nized with the petitioner. In the wedlock, they have been blessed with two daughters viz. R2 and R3. The petitioner is presently posted as Executive Engineer in the Public Health and Engineering Department at Kota (Rajasthan). It was on 24.04.2006 that the respondents were brought to Jabalpur from Kota by Mahendra and :: 2 ::
Cr. Revision No.2303/2007Jitendra, the brothers of R1. Since then, they have been residing at her parental home at Jabalpur only. R1 is Post-Graduate in Geography whereas R2 and R3 are the students of Class IV and Nursery respectively. The petitioner has also filed a petition, under Section 9 of the Hindu Marriage Act, 1955 against R1 for restitu- tion of conjugal rights before the Family Court at Kota.
(ii) On 08.07.2006, the proceedings for grant of a to-
tal amount of Rs.11,000/- (Rs.5000/- for herself and Rs.3000/- for each one of the other respondents) as maintenance allowance were initiated by R1. Accord- ing to her, - right from inception of the marital rela- tionship, she had been subjected to cruelty and dowry harassment not only for brining insufficient dowry but also due to non-fulfillment of demand for a new car. In this regard, the petitioner picked up a quarrel with her even in the presence of her parents on 22.05.1997 at Kota and, ultimately, with the help of police, she was taken to parental home at Jabalpur where she had to reside with R2 for a period of 11 months. There- after, in the wake of undertaking given by the non-ap- plicant/petitioner that ill-treatment would not continue any further, she was again sent to her matrimonial home. However, there was no improvement in the be- haviourial pattern and, eventually, his mother asked the brother of R1 to take her back and send only after a new car was made available. Thus, she was again com- pelled to live with her parents at Jabalpur for a period of 6 months and upon a fresh assurance given by the petitioner to mend his ways, agreed to return to her matrimonial home where she was again subjected to dowry torture. It was against this backdrop that upon :: 3 ::
Cr. Revision No.2303/2007the petitioner's refusal to send her to Jabalpur to see her ailing father, she was left with no option but to leave her matrimonial house with her brothers on 24.04.2006 after informing the police accordingly.
(iii) In reply, the petitioner specifically denied the al- legations as to cruelty and dowry harassment. Atten- tion was also invited to the fact that no complaint re- garding alleged ill-treatment on account of dowry de- mand was made at an earlier occasion. As per his ver- sion, R1 used to misbehave with his parents; give threats to get them detained in prison and one of the in- cidents of quarrel attributable to her had resulted into death of his father. According to him, R1 had left mat- rimonial home because of incompatibility with his mother, who is presently aged about 72 years, whereas being the only son, he is under a moral obligation to take care of her.
3. Both the wife and the husband preferred to prove the re- spective pleadings by entering into witness box and producing the relevant documents. However, one of the documents, marked as Ex.P-2, was the subject-matter of objection raised during chief-examination of R1 on the ground that no reason was as- signed for not filing the same at an earlier stage. The document is in the form of the carbon copy of the report said to have been submitted by R1 on 24.04.2006 before S.H.O., P.S. Mahaveer Nagar, Kota. Its authenticity has been questioned in the light of the recitals of the report entered at Sl. No. 1697 on the same day in the Rojnamcha. It is relevant to note that Rojnamcha report, copy of which is placed on record as Ex.D-4, does not contain any reference to the dowry harassment. On the contrary, it was categorically mentioned therein that, in the wake of husband's re-
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Cr. Revision No.2303/2007fusal to permit her to look after her ailing father, the wife was compelled to leave his house.
4. On these facts, even assuming that the original of the docu- ment (Ex.P-2) was presented before the S.H.O., it happened to be the first report regarding alleged dowry harassment during a con- siderable span of 11 years of the marital life.
5. Learned counsel for the petitioner, while inviting attention to the decision of the Allahabad High Court in Smt. Saroj Devi vs. Krishna Murari Tewari 1980 ALL.L.J. 447, has strenuous- ly contended that the conduct of not informing the police about the ill-treatment or dowry torture meted out to R1 was not unusu- al or unnatural. However, the fact of the matter is that the grievance against cruel treatment in the matrimonial home was not projected at any earlier point of time in any other manner or form whatsoever. Moreover, the contents of the letters (Ex.D-1, D-2 and D-3), written by R1 to her father, husband and parents- in-law respectively at different occasions, clearly suggested that the alleged greed for dowry was not the cause of disharmony in the marital relationship. This apart, no evidence was led to estab- lish the nature and illness of R1's father and the circumstances preceding her leaving of matrimonial home on 24.04.2006 de- spite the fact that the same could be duly proved by examining her brothers namely Mahendra and Jitendra.
6. The petitioner, in his sworn testimony, has clearly refuted the allegations as to dowry harassment. According to him, R1 used to ill-treat his mother who is totally dependent on him only. In para 23 of her cross-examination, R1 also candidly admitted that the best period of her marital life was spent at Ratangarh where she had the occasion to live with her husband and daugh- ters only.
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Cr. Revision No.2303/20077. As cautioned by the Apex Court in Rajathi vs. C. Gane- san, (1999) 6 SCC 326, it is not necessary to examine the entire evidence threadbare in a case under S.125 of the Code as only a prima facie view of the matter is taken. Therefore, it would not be desirable to enter into the minutest details of the matrimonial dispute, particularly when the petition for restitution of conjugal rights is pending before the competent Court. However, in the light of the evidence brought on record, the finding that a sepa- rate stay of the wife was justified due to alleged dowry torture is, on the face of it, apparently illegal or perverse. Accordingly, R1 is not entitled to claim maintenance in view of the fact that she had left her matrimonial home without any justifiable ground (Deb Narayan Halder vs. Anushree Halder AIR 2003 SC 3174 referred to). Nevertheless, this finding is not sufficient to disenti- tle her from claiming maintenance for the minor children viz. R2 and R3 as their custody is immaterial for determining the statuto- ry liability of the father. The corresponding quantum of mainte- nance can also not be termed as excessive in the light of social background and standard of living of the parties.
8. In the result, the revision is partly allowed. The impugned order of maintenance so far as it relates to R1 namely Smt. Sunita Kachwaha is set aside whereas the remaining part of the order concerning R2 and R3 viz. Ku. Ankita Kachwaha and Ku. Akshi- ta Kachwaha respectively is hereby affirmed.
Revision partly allowed.
(R.C. Mishra) JUDGE 26.06.2008 :: 6 ::
Cr. Revision No.2303/2007 Cr. Revision No.2303/200726.06.2008 Shri Pankaj Dubey, Advocate for the petitioner.
Shri Atul Choudhary, Advocate for the respondents. Heard on I.A. No.7746/2008 for rectification of the typo- graphical error cropped in the order-dated 03.04.2008.
Learned counsel for the respondents has no objection. Ac- cordingly, the I.A. is allowed and it is directed that in the 3 rd line of the order-dated 03.04.2008, for the word "applicant", the word "re- spondent no.1" shall be substituted.
Also heard on I.A. Nos.5346/2008 and 7497/2008 moved by the respondents and the petitioner respectively for taking additional documents on record. However, while examining the legality, pro- priety and correctness of the impugned maintenance order, this Court is only required to consider the facts admitted and the evi- dence adduced by the parties before the Family Court. Further, none of the parties has furnished any explanation as to why the doc- uments referred to in the applications could not be produced in evi- dence before the Court below.
In this view of the matter, I.A. Nos.5346/2008 and 7497/2008 stand rejected.
With consent, matter is finally heard.
Order passed in the open Court, signed and dated.
(R.C. Mishra) JUDGE