Allowed

Smt. Sunita Devi and Another v. State of U.P. and Another

Allahabad HC10 Jan 2018CRLR/2680/2016

Case brief

AI extract

What is this about?

This criminal revision set aside a Family Court order dismissing a wife's Section 125 Cr.P.C. maintenance application. The High Court held that the wife was living separately due to torture for dowry demands with sufficient reason, not due to adultery or refusal without cause, and remanded the matter.

What did the court decide?

The order dismissing the maintenance application is set aside. Matter remanded to allow fresh hearing and expedite decision within two months.

Smt. Sunita Devi and Another Vs State of… — Pension and Retirement Benefits | Allahabad HC (2018)

¶1

¶2

Court No. - 17

¶3

Case :- CRIMINAL REVISION No. - 2680 of 2016

¶4

Revisionist :- Smt. Sunita Devi & Another Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Vindo Kumar Kushwaha,Alka Pandey Counsel for Opposite Party :- G.A.

¶5

Hon'ble Dinesh Kumar Singh-I,J.

¶6

This Criminal Revision has been preferred against the judgment and order dated 21.7.2016 passed by the Principal Judge, Family Court, Kaushambi in Case No. 128 of 2015 (Sunita Devi and another vs. Sohan Lal) under Section 125 Cr.P.C..

¶7

The facts, in brief, of the case are as follows:-

¶8

The revisionist no.1 married opposite party no.2 on 17.4.2014 according to Hindu rites after sufficient dowry having been given. The parents and other family members of the opposite party no.2 were not satisfied with the said dowry and were making demand of additional dowry. When inability was shown to fulfill the demand, she was used to be abused and beaten occasionally by the family members of opposite party no.2. When she makes complaint about this to her parents they had assured her that she should remain patience, things would be alright in due course of time. On 20.9.2014 due to non-fulfillment of additional demand of dowry, the family members of the opposite party no. 2 made an attempt to burn her by sprinkling kerosene oil on her. The neighbors assembled there and she was thrown out from the house, at that time she was three months pregnant. She reached the house of her sister Kunti at about 8.30 P.M.. On the next day her family members also reached there. The information of this occurrence was given to the Superintendent of Police , Kaushambi and at Police Station Thariyawn but her report was not registered. The family members of opposite party no.2 got a NCR registered against her cousin brothers Narendra and Prem and brother-in-law Raju at P.S. Thariyawn being NCR No. 31 of 2014. Out of the wedlock one son was also born. She was uneducated lady. She did not know any technical work. Therefore, she could not maintain herself and her child. The financial condition was very poor as the marriage was performed after taking debt by her parents. On the other hand, the opposite party no. 2 had 8-9 bighas agricultural land, besides that the business of sale of milk was also being done by him and by all these he earned approximately Rs.20,000/- to Rs.25,000/per month. He had also 2-3 'Panchakki' which were being run on rent. Therefore,

¶9

¶10

she had prayed that an amount of Rs.5,000/- be directed to be paid to her per month and also Rs.5,000/- per month to her son as maintenance amount under section 125 Cr.P.C

¶11

The opposite party no. 2 though admitted the marriage but stated in opposition that he had lodged NCR No.91 of 2014 under section 498, 504, 506 IPC, because his wife had run away with Narendra. It was further submitted by him that she remained only for four months in his house and in the meantime she used to talk to Narendra despite objection. Whenever she was restrained from talking to him she threatened to commit suicide by consuming poison only to create the pressure to go to her parents' house. The parents of the revisionist had also told her not to meet frequently with Narendra but she would not obey their command. She used to say that if much pressure would be exerted, she would go away with Narendra. After having seen her character, a case under Section 13 of the Hindu Marriage Act for divorce had been filed by him before the Family Court, Fatehpur. Therefore, he had prayed that the application for maintenance be rejected.

¶12

Before the court below the revisionist Smt. Sunita had examined herself as PW 1 and Awadhesh as PW 2 and opposite party no. 2 Sohan Lal examined himself as DW1. The court below has recorded in its judgment that the question to be determined in this case is whether the husband is denying to maintain his wife, as his wife has sufficient means to maintain herself and whether there was justified reason for residing separately from her husband.

¶13

After having considered the evidence on record, the court below has expressed opinion that it is admitted that both the revisionist no. 1 and the opposite party no.2 were living separately. The opposite party no.2 had stated that the conduct of his wife was upto the mark for only a month after marriage, thereafter she started talking to Narenedra on phone and whenever he restrained her from calling him, she threatened to take poison. When he apprised about this to her parents, the revisionist no. 1 vanished all of a sudden from his house and remained underground for a month. When he tried to find out about her, it transpired that she was living with Narendra in Ludhiana. Therefore, he lodged NCR No. 90 of 2014 under Sections 498, 504 and 506 IPC on 27.9.2014. This fact was admitted by PW 2, who is father of revisionist no.1 in cross examination. An information was given by him at P.S. Saini about his daughter having gone away from home. Further the court below has recorded in the judgment that as regards adultery , both sides have made allegation against each

¶14

¶15

other only with a view to creating the evidence in their favour but under the circumstances he has expressed opinion that the revisionist no.1 was not compelled to live at her parents' house rather that she was living there of her own free-will after having gone from the house of the opposite party no. 2. Because of her staying with her parents willingly and having ran away with Narendra, she was not entitled to maintenance from opposite party no.2 and consequently the said application has been dismissed.

¶16

Learned counsel for the revisionist has contended that under Section 125 (4) Cr.P.C maintenance can be refused to the wife (revisionist no.1) only when the opposite party no. 2 had proved that she was living in adultery or that she had refused to live with her husband without any sufficient reason. In the case at hand, the court below has dismissed the maintenance application illegally because the revisionist no. 1 had reasonable ground to stay away from her husband as she was being tortured and beaten for dowry when she stayed with her husband. In this regard, he has drawn the attention of the court to a complaint case filed by her against her husband and his family members in the court of CJM, Kaushambi under section 498-A, 323, 504, 506, 452 IPC and ¾ D.P. Act, P.S. Saini, District Kaushambi wherein the court has summoned them to face trial vide order dated 9.2.2016. During the argument, he has also provided a copy of the injury memo of the revisionist no. 1 Sunita Devi dated 18.5.2015 in which two contusions and complaint of pain has been recorded by the doctor to have been suffered by the revisionist no.1. It is stated that injury memo substantiates her allegation that she was beaten while staying with her husband, due to demand of dowry not being fulfilled, and hence she had ran away from her in-laws' house.

¶17

The opposite party no. 2 was served personally as per office report dated 8.1.2018 but none has turned up from his side. Therefore, it appears that he has nothing to say against this revision.

¶18

Heard Sri V.K. Kushwaha, learned counsel for the revisionist, learned A.G.A. and perused the record.

¶19

It would be appropriate to reproduce here the provision of Section 125 (4) of Cr.P.C for the sake of convenience.

¶20

“Section 125(4) in The Code Of Criminal Procedure, 1973

¶21

(4) No Wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be) from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her

¶22

¶23

husband, or if they are living separately by mutual consent.”

¶24

It is apparent from the above position of law that there is no evidence on record that the revisionist was staying away from opposite party no. 2 without any reason or in adultery, so that she could have been refused the maintenance by opposite party no. 2. It has come in evidence on record that the revisionist no. 2 is son of opposite party no.1. It is not disputed that the revisionist no.2 (son) is staying with revisionist no.1 (mother). Therefore, he is entitled to maintenance from opposite party no. 2 at all cost. The court below has not paid attention to this fact and has cursorily dismissed the application for maintenance of revisionist no 2, which is illegal.

¶25

As regards the maintenance to revisionist no. 1 (wife) the evidence which has come on record, has been considered by this Court and it does not find that it shows the revisionist no.1 was living adulterous life. There is no evidence to that effect at all. She is staying with her parents and the ground to stay with them is that she was being tortured by the opposite party no.2 and his family members for demand of dowry which could not be fulfilled by her parents. A complaint case has also been filed by the revisionist no. 1 against the opposite party no.2 which is pending before the CJM, Kaushambi, wherein the case is prima-facie found proved against the opposite party no. 2 and his family members and they have been summoned to face trial. In view of this fact, it cannot be inferred that the revisionists were staying away from the opposite party no. 2 without any sufficient reason. The court below has not taken into consideration these facts and has rejected the application of maintenance under section 125 Cr.P.C. without justifiable reason, which needs to be set aside.

¶26

In view of above, this revision is allowed and the order dated 21.7.2016 passed by the Principal Judge, Family Court, Kaushambi in Case No.128 of 2015 (Sunita Devi and another vs. Sohan Lal) is set aside. Matter is remanded to the court below to decide the said application for maintenance afresh after affording opportunity of hearing to both the parties, expeditiously, preferably within a period of two months.

¶27

Order Date :- 10.1.2018 AU

Smt. Sunita Devi and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Smt. Sunita Devi and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dwarika Vs State

Geeta Vs State of U.P.

Tarun Yadav and Another Vs State of U.P. and Another

Ram Achal Bind and 2 Others Vs State of U.P. and Another

Babbu @ Saniyal Vs State of U.P. and 2 Others

Javed and Another Vs State of U.P. and Another