Points to consider to grant interim maintenance u/s 125 Cr.P.C

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR

S.B. Criminal Writ Petition No. 520 / 2016

Mukesh Son of Sh. Ramchandra, by Caste-Meena, R/o Village
Baijwadi, Tehsil-Nangal Rajawatan, District-Dausa (Raj.)—-Petitioner
Versus
Smt. Sangeeta Wife of Sh. Mukesh D/o Sh. Har Sahai, by Caste
Meena, R/o Village Kheda Baghpura, Tehsil- Nangal Rajawatan,District-Dausa (Raj.)—-Respondent

For Petitioner(s) : Shri Vivek Goyal For Respondent(s) : Shri Mitesh Sharma

HON’BLE MR. JUSTICE VIJAY KUMAR VYAS Order 25/07/2017

REPORTABLE

By way of this criminal writ petition, petitioner has assailed the order dated 20.10.2016 passed by learned Additional Sessions Judge, Dausa in Criminal Appeal (BT) No.79/2015 (149/2015) whereby allowing the appeal partly he modified the order dated 20.11.2015 passed by learned Nyayadhikari, Gram Nyayalya, Dausa and reduced the amount of Rs.15,000/- to Rs.7,500/- per month to be paid by the petitioner to the respondent as maintenance on interim basis. Learned Nyayadhikari, Gram Nyayalya, Dausa passed the order dated 20.11.2015 in Miscellaneous Application No.252/2014 (BT No.176/2015) u/s 125 Cr.P.C., whereby the trial court ordered the petitioner to pay Rs.15,000/- per month as maintenance to  the respondent on interim basis till disposal of the main application u/s 125 Cr.P.C.

Learned counsel for the petitioner submits that both the parties belong to Meena community where customary rites prevail and as per custom, they can leave each other from wedlock without following the procedure prescribed in Hindu Marriage Act and get married to some other person as well. Accordingly, on 31.5.2014, both the parties agreed to get separated from the wedlock and an agreement on stamp paper of Rs.10/- to the effect was executed and signed by both of them. On the same day, respondent entered into an agreement with third person Ramkesh wherein both of them agreed to live as husband and wife and declared that they have married in a temple on the day. This agreement was signed by both respondent and said Ramkesh as well as four witnesses. This agreement was also executed on stamp paper of Rs.100/-. As such, the respondent is no more wife of the petitioner with effect from 31.5.2014. She is now living with said Ramkesh as his wife. Subsequently, on 4.11.2014 respondent lodged an FIR No.260/2014 at Police Station Mahila Thana, Dausa against petitioner for offence u/s 498A, 406, 323 IPC and sections 2, 4 & 6 of the Dowry Prohibition Act, 1961, wherein after investigation, police submitted a final report in negative. A protest petition submitted by the respondent was rejected by the Magistrate of the jurisdiction on 13.10.2016 and by the same order, learned Magistrate accepted the final report. Learned counsel further submitted that later on, on 22.9.2016 a meeting of the community Panchayat was convened wherein it was resolved to observe that respondent is living with Ramkesh as his wife which is not permissible as per customs of the community. It was also observed that there is no fault of Mukesh. Learned counsel concluded his submissions by stating that despite of such ample prima facie evidence, learned Nyayadhikari, Gram Nyayalya and learned Additional Sessions Judge passed impugned orders without assigning any reason for disbelieving such evidence.

Per contra, learned counsel for respondent submits that there is no material on record to establish that provisions of Hindu Marriage Act does not apply to the Meena community. It is undisputed that the respondent is a duly wedded wife of the petitioner. Petitioner has failed to produce any legal proof to substantiate the alleged fact of dissolution of such marriage. Therefore, learned trial court rightly observed that until the evidence submitted by the petitioner is proved and dissolution of marriage is duly established during trial, the prayer for grant of interim maintenance made by respondent cannot be declined. Learned counsel further submits that the order of Magistrate of jurisdiction passed on 13.10.2016, is under challenge by way of revision submitted by the respondent and it can’t be said that the matter has attained finality.

I have given thoughtful consideration to the rival submissions made before me and gone through the material available on record.

Whether provisions of Hindu Marriage Act applies to  the Meena community to which the present parties belong, so also, as to whether by what customary rites and rituals, dissolution of marriage can be effected – these are questions to be answered only after trial of the matter. The instant matter is with regard to grant of interim maintenance during pendency of main application u/s 125 Cr.P.C. At this stage, only things, which are required to be seen by the court are :

A. Whether the applicant is legally wedded wife of the respondent ?
B. Whether she is living separately on a justified ground ?
C. Whether she is unable to maintain herself ?
None of the parties has disputed the wedding of respondent with petitioner and inability of the respondent to maintain herself. So far question of living separately is concerned, respondent has not submitted any prima facie evidence to substantiate the grounds narrated by her in the application to justify her living separately. On the contrary, the evidence in the form of agreements, final reports and others as pointed out in the submissions of learned counsel for the petitioner, are indicating that the respondent is not living with the petitioner. Rather she has willingly left the petitioner and is living with some other person alleged to be her new husband. It appears that learned courts below did not consider the matter in right perspective. At the preliminary stage of the proceedings, the material made available by the petitioner was sufficient to rebut the claim of the respondent for interim maintenance. The order dated 20.11.2015 passed by learned Nyayadhikari, Gram  Nyayalya, Dausa and order dated 20.10.2016 passed by learned Additional Sessions Judge, Dausa are found to be perverse and perfunctory.

Therefore, the criminal writ petition succeeds. The order dated 20.11.2015 passed by learned Nyayadhikari, Gram Nyayalya, Dausa and order dated 20.10.2016 passed by learned Additional Sessions Judge, Dausa are quashed and set aside.

Before parting, it is made clear that whatever observed hereinabove shall have no effect on proceedings and disposal of the main application.

The criminal writ petition is disposed of accordingly.

(VIJAY KUMAR VYAS)

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