Madhya Pradesh High Court
Ajay Sharma vs Smt. Archana Sharma on 27 March, 2017
1
CRA No.159/2017
(Ajay Sharma vs. Smt. Archana Sharma & Anr.)
27.3.2017
Shri Shubhendu Singh Chauhan, counsel for the
appellant.
This appeal under Section 341 of Cr.P.C. has been filed
against the order dated 6.1.2017 passed by Principal Judge,
Family Court, Gwalior, by which the application filed by the
appellant against the respondent for offence under Sections
340 and 195 of Cr.P.C. has been rejected.
The facts necessary for the adjudication of the present appeal in short are that a petition under Section 125 of Cr.P.C. was filed by the respondent No.1 against the appellant for grant of maintenance. The undisputed fact is that the parties are the husband and wife. The said petition filed under Section 125 of Cr.P.C. was allowed by the Trial Court and certain maintenance amount was awarded.
It is submitted by the counsel for the appellant that during the pendency of the proceedings under Section 125 of Cr.P.C., he had filed an application under Section 340 r/w Section 195 of Cr.P.C. on the ground that the respondent is working but she has still given a false affidavit showing herself to be unemployed. It is submitted that the said application was kept pending with a direction that the application shall be decided at the time of final hearing. However, while passing the final order under Section 125 of Cr.P.C. no reference was made to the application filed by the appellant under Sections 340 and 195 of Cr.P.C. Thus, a separate application was filed, which has been dismissed by the Trial Court by order dated 6.1.2017.
It is submitted by the counsel for the appellant that the 2 CRA No.159/2017 Trial Court while deciding the proceedings under Section 125 of Cr.P.C. has also come to a conclusion that the respondent is a working woman and, therefore, it is clear that the affidavit filed by her showing herself to be unable to maintain herself having no source of income was false and, therefore, proceedings are required to be initiated against her for offences under Section 181 and 193 of IPC.
Heard the learned counsel for the appellant.
From the record, it appears that the respondent No.1 filed an application under Section 125 of Cr.P.C. for grant of maintenance. During those proceedings the respondent No.1 filed an affidavit showing herself to be unemployed and unable to maintain herself. Although the Trial Court had earlier directed that the application filed under Section 340 of Cr.P.C. would be decided at the time of the final hearing of the case but while passing a final order under Section 125 of Cr.P.C., no reference was made to the said application. Under these circumstances, it would be clear that the Trial Court had decided not to proceed further on the application filed by the appellant under Sections 340 and 195 of Cr.P.C. Although in a judicial proceeding where a party comes to a Court for claiming certain reliefs, then it is expected that it would come with clean hands. In the present case the dispute is between the husband and wife. The appellant has not placed on record the reply which he had filed to the application filed by the respondent No.1 under Section 125 of Cr.P.C. From the record also, it appears that the matter had also traveled upto the Supreme Court. Thus, it is clear that the parties are fighting with each other from teeth to nail and do not want to leave any opportunity to implicate the other in judicial proceedings.
3 CRA No.159/2017In the present case, the Trial Court had come to a conclusion that the respondent is entitled for certain amount of maintenance. The Trial Court has not rejected the claim of the respondent No.1 in toto. Once the Trial Court while deciding the application under Section 125 of Cr.P.C. did not think it proper to take up the application filed under Sections 340 and 195 of Cr.P.C. by the appellant then it has to be presumed that the Trial Court did not consider it to be a fit case for initiating the proceedings against the respondent No.1. If the appellant was aggrieved by the non-consideration of the application filed under Sections 340 and 195 of Cr.P./C. by the Trial Court at the time of passing of final judgment dated 10.3.2014, then he could have filed a revision/appeal.
Furthermore, it is for the Trial Court to consider whether the person who has filed an affidavit should be prosecuted for giving a false evidence or not.
Considering the nature of the allegation as well as the status of the parties, if the court below has exercised its discretion not to proceed against the respondent No.1 under Sections 340 and 195 of Cr.P.C., this Court does not find to be a fit case for interference with the discretion exercised by the Trial Court.
Accordingly, this appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
(alok) Judge