Court No. - 17
Judgment reserved on 1.2.2018 Judgment delivered on 28.2.2018 Case :- CRIMINAL REVISION No. - 1172 of 2015 Revisionist :- Ram Niwas Opposite Party :- The State Of U.P. And Another Counsel for Revisionist :- Mool Chandra Maurya Counsel for Opposite Party :- Govt.Advocate
Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal revision has been preferred assailing judgment and order dated 9/12/2014 passed by the learned Principal Judge, Family Court, Etah in case No. 314 of 2013, Smt. Suman Lata vs Ram Niwas, under section 125 Cr. P.C., PS, Mirhachi by which allowing the application of opposite party No. 2, the revisionist has been directed to pay her maintenance at the rate of Rs. 2000/– per month.
2. The contention of the revisionist is that the opposite party No. 2 had admitted on oath to have received Rs. 1,25,000/- as maintenance by one-time settlement for whole life in an earlier filed case No. 147 of 2010, Suman Lata Vs. Ram Niwas, which the learned Principal Judge Family Court omitted to take into consideration. In the judgement and order dated 03.07.2010 passed by Additional Civil Judge Junior Division /Judicial Magistrate, Court No. 22, Etah, it was clearly recorded that opposite party No. 2 had deserted the revisionist herself. In her statement, she had stated voluntarily that in lieu of her being paid Rs. 1,25,000/-, she would not make any further demand for maintenance. The provision under section 125 (4) has been ignored which stipulates that the wife would not be entitled to any maintenance if she stays separately with mutual consent. The learned Court below had recorded that it was wrong to say that the revisionist had got the earlier case decided adopting devious means of managing an imposter to appear as opposite party in the said case and procured a compromise to the effect that in lieu of monthly payment of maintenance, one-time amount of Rs. 1,25,000/- would suffice and that no further maintenance amount would be claimed by opposite party no. 2. In this background, the prayer is made that the impugned judgement be set aside/quashed.
3. Perused the impugned judgement. The facts as mentioned in the said judgement in nutshell are that opposite party No. 2 was married to the revisionist on 26.04.2001 in accordance with Hindu rites. The folks at matrimonial house were unhappy with her due to lesser amount of dowry and were demanding additional amount of Rs. 50,000/- in cash, due to non-fulfilment of the said demand she was being tortured physically and mentally. On 31.05.2007, she was beaten and thereafter on 02.06.2007 she was thrown out of matrimonial house, as a result of which she started living in the house of her parents. She had no means to survive, her parents being very poor. She had moved an application for maintenance registered as Case No. 147 of 2010 , but the revisionist has shown the said case to have been compromised by asking an imposter to pose as his wife and on the basis of the alleged compromise, the case of maintenance was dismissed. It was further mentioned that the opposite party possessed 10 'bighas' of land, had a ‘pukka’ house in village, had business of sale of milk, had a tailor shop and by all these means, used to earn Rs. 20,000/– per month.
4. The revisionist had admitted to have married the opposite party No.
2 in written statement and stuck to the ground that she had already settled the maintenance case by having agreed to not claim any further amount in lieu of one-time payment of Rs. 1,25,000/- to her on the basis of compromise and in pursuance thereof she had also given a statement in the Court of Magistrate on 30.06.2010, in which she admitted to have received a lump sum of Rs. one lakh twenty-five thousand in lieu of monthly payment of maintenance.
5. The revisionist had also moved an application before the Court below with a prayer that the case was not maintainable due to above ground, against which an objection was submitted by the opposite party no. 2 and the same was also to be disposed of with this case u/s 125 Cr.P.C.
6. From the side of opposite party No. 2, she examined herself as A.P.W. 1, Rajesh as A.P.W. 2 and Gajadhar as A.P.W. 3. She filed prescription of Doctor ; a copy of the statement of Ram Niwas recorded under section 200 Cr. P.C.; a copy of the statement recorded of Ram Niwas in maintenance case No. 147 of 2010 contested earlier; a copy of complaint case filed by Ram Niwas; a copy of original suit No. 173 of 2009; a photograph and greeting card, a copy of ration card; papers of salary of brother Rajeshwar of the opposite party No. 2 and papers relating to education of daughter of Rajeshwar. From the side of the revisionist he himself was examined as OPW 1 and Akhilesh was examined as OPW 2. He filed a certified copy of order dated 03.07.2010 passed by the Court of Magistrate in maintenance Case No. 147/2010; a certified copy of order dated 04.11.2010 passed in respect of disposal of report of reader concerning an application under section 125 Cr. P.C.; a copy of statement of Suman, her father Bhimsen and a certified copy of order of High Court passed in writ petition No. 41344 of 2010.
The following three points for determination were framed: –
1. Whether in maintenance case No. 147 of 2010, Smt. Suman Lata vs Ram Niwas decided on 03.07.2010, the opposite party No. 2 had received an amount of rupees one lakh twenty-five thousand by way of final settlement?
2. Whether the opposite party No. 2 was staying in her parents’ house due to ill-treatment by the revisionist and was unable to maintain herself?
3. To what relief, the opposite party No. 2 was entitled?
7. After consideration of the evidence on record, the lower Court has returned the finding that it could not be held that in the earlier case of maintenance an amount of Rs. 1,25,000/- was paid by the revisionist to the opposite party No. 2 for her lifetime settlement of maintenance. It is also held that it could not be held that due to payment of a lump sum having been made in an earlier filed case of maintenance by opposite party no. 2 the present case would be barred, rather it has to be seen as to whether the opposite party No. 2 was capable to maintain herself. While recording as above, it is mentioned in the judgment that from the perusal of copies of statements of Suman Lata and Bhimsen, it was apparent that they had deposed in a case of maintenance even prior to their statement dated 30.06.2010, in which they had not uttered anything about a compromise having taken place between the parties. However in their statement dated 13.06.2010, it is narrated that some good intentioned persons had persuaded the parties to enter into a compromise and Suman received an amount of Rs. 1,25,000/- as lump sum in final settlement of the said case. However, from the side of Suman, it is denied that any such amount was paid to her, rather it is alleged that some imposter was asked by revisionist to appear as his wife and entered into a compromise. Therefore the purported compromise was never entered between the parties. The Court below has compared the signatures of Suman Lata and her father on their statements given earlier with the signatures on the present statements, even though no expert was examined in this respect, and found that both the signatures tallied and discarded the contention of the revisionist.
8. With regard to the point No. 2 regarding torture to the opposite party No. 2, which led her to stay in her parents’ house and her capacity to support herself , it is held that she was being tortured at her matrimonial house for dowry and that she was unable to maintain herself because the sum of Rs. 1,25,000/- could not be held to be sufficient amount to meet her expenses for life. While recording the above finding, it is mentioned in the body of the judgement that it was admitted fact that the case of maintenance was contested between the parties earlier and that on 30.06.2010, the opposite party No. 2 having taken an amount of Rs. 1,25,000/- from the revisionist had made a statement to that effect, therefore, it could be concluded that there were certain reasons/issues between the parties which compelled the opposite party No. 2 to live separately from her husband, in her parents’ house. It is also recorded that no cross-examination was made by the counsel of revisionist that O.P. No. 2 was being tortured for dowry and for that on 31.05.2007 and 02.06.2007, she was beaten by the revisionist and his folks in his house and they deserted her on the Etah Kasganj road by the side of the canal. Similarly APW 2 has also corroborated the statement of APW 1 in respect of dowry demand and torture for its non-fulfilment and that it also came on record that a case under section 498 A IPC was initiated against the revisionist, where-against a writ petition No. 41344/2010 was filed by him, in which the Court had directed the husband and his family members to surrender before Court. Both the witnesses, i.e. APW 1 and APW 2 have clearly corroborated the version of torture for dowry which led the opposite party No. 2 to stay in her parents’ house. The statement from the side of revisionist as APW 1 and APW 2 merely concentrated on payment of Rs. 1,25,000/- to have been made to the opposite party No. 2 as one- time payment in lieu of monthly maintenance allowance, which could not be held to be sufficient for whole life.
9. As regards point No. 3, it was held that the opposite party No. 2 was staying at her parents’ house and was not doing any work while the revisionist was found to be owner of 10 bighas of land, a tailor shop, as the same was not rebutted. Therefore, the Court held that his income from these sources could be held to be between nine to ten thousand per month and hence an amount of Rs. 2000 per month was found to be a reasonable amount to be fixed as maintenance for the opposite party No. 2.
10. Heard the arguments of learned counsel for the revisionist and learned A.G.A. None appeared from the side of opposite party No. 2 despite sufficient service as per office report dated 30.06.2015.
11. The main argument made by the learned counsel for the revisionist is that the opposite party No. 2 was staying away from the revisionist voluntarily, which would deprive her of any kind of maintenance to be paid by the revisionist. Moreover, the opposite party No. 2 had already settled the case of maintenance in earlier proceedings for maintenance filed before the Court of Judicial Magistrate being case No. 147 of 2010, in which she had received a lump sum of Rs. 1,25,000/- in lieu of maintenance for life under a compromise entered into between the parties. Both these points were not considered by the learned Court below in right perspective, hence, the impugned order of the lower Court needs to be set aside.
12. The learned A.G.A. in rebuttal has argued that a second case under section 125 of Cr. P.C. being case No. 314 of 2013, Suman Lata Vs. Ram Niwas could not have been filed before the learned Principal Judge, Family Court, Etah by the opposite party No. 2 because as per her own version an earlier case was filed by her for maintenance before the Court of Magistrate being case No. 147 of 2010, Suman Lata vs Ram Niwas which had been shown compromised by the revisionist by asking some impostor to impersonate her, therefore, the said case would be treated to have been decided against her in her absence, against which she had a relief available under law, under section 126 (2) Cr. P.C. to get the said judgement set aside and seek relief in the same case.
13. The argument of learned AGA appears to be absolutely correct. It would be pertinent to reproduce the said provision here: – “126 . Procedure . – (1)...............
(2) All evidence to such proceeding shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within 3 months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.”
14. It appears that the above provision has escaped the attention of the learned Court below as well as the opposite party No. 2. The finding of the learned Court below to the effect that the amount received by the opposite party No. 2 of Rs. 1,25,000/- was not sufficient to meet out the expenses for the lifetime and that she was staying in the house of her parents, only because she was tortured for dowry by the revisionist when she was staying in her matrimonial home, seems to be erroneous, because the learned Court below has upheld the genuineness of the compromise as alleged to have been entered into between the parties in an earlier filed case for maintenance i.e. in case No. 147 of 2010, Suman Lata Vs. Ram Niwas. It may be mentioned here that the opposite party No. 2 has admitted filing of the said case but simultaneously it has also been stated from her side that there was no compromise filed by her in the said case rather somebody else impersonated her in the said case and it has been wrongly shown to have been compromised between that person and the revisionist and that she had never appeared in that case for compromise. This amounts to admission by her of filing of the said case, but no justification has been given as to why she did not resort to the proceedings under proviso to section 126 (2) to get the said judgment set aside as soon she came to know that the said compromise was being shown to have been entered into between an imposter and the revisionist by moving an application before that court. This option was very much available to her instead of filing a second application under section 125 Cr. P.C.
15. In view of above, the impugned order deserves to be set aside and is accordingly set aside. The opposite party No. 2 is at liberty to invoke the provisions under section 126 (2) Cr. P.C for getting the order dated 3.7.2010 set aside and to get the said case of maintenance decided on merits.
16. The revision is accordingly, allowed.
Order Date: 28.2.2018 Mandhani