Gadesh Prasad Dudi vs Smt. Madi Bai Dudi on 27 November, 2017

HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B. : HON’BLE MS. JUSTICE VANDANA KASREKAR

Criminal Revision No.244/2015

Gadesh Prasad

vs.

Smt. Madi Bai Dudi another

———————————————————————————
Shri Satyendra Jain, learned counsel for the
applicant.

Shri Ishteyaq Hussain, learned counsel for respondent
No.1.
———————————————————
O R D E R

(23/11/2017)

The applicant has filed the present revision

challenging the order dated 23/12/2016 passed by the

Principal Judge, Family Court, Harda, thereby allowing the

application preferred by the non-applicant under Section 125

of the Cr.P.C.

2. Brief facts of the case are that the applicant

is husband of respondent No.1 and father of respondent

No.2. The marriage between the applicant and respondent
No.1 has been solemnized on 15/02/1994 at Khategaon.

After the birth of non-applicant No.2, non-applicant No.1 has

left the house of the applicant within three years of marriage

and started living with her parents without any cause. Since

then she never come back to applicant’s house till date. After

lapse of 16 years all of a sudden in the year 2015 non-

applicant had filed an application under Section 125 of the

Cr.P.C. claiming maintenance for herself and her daughter.

The said application was opposed by the applicant on the

ground that she is not entitled for maintenance as she

herself has deserted the applicant willfully without any

reasonable cause. She has also made false allegations

regarding demand of dowry and second marriage of the

applicant. Applicant further submits that the he is a poor

farmer who has very low income. However, the Family Court

after recording the evidence of both the parties have passed

the order dated 23/12/2016 thereby awarding the

maintenance of Rs.5,000/- to applicant No.1 and Rs.2000/-

to non-applicant No.2. Being aggrieved by that order, the

non-applicants have filed the present revision.

3. Learned counsel for the applicant submits

that the Family Court has erred in allowing the application

preferred by the non-applicant under Section 125 of the

Cr.P.C.. The respondent No.1 has deserted the applicant

wilfully without any reasonable cause and after lapse of 16

years she preferred an application under Section 125 of the

Cr.P.C. and, therefore, she has not entitled to get the

maintenance. He further relied on the order passed by the

Hon’ble Apex Court in the case of D. Vellusamy vs. D.

Pachhaimal and others, AIR 2011 SC 479. He further

submits that the trial Court has committed an error in

calculating the income of the applicant without any

adequate proof of annual income.

4. On the other hand, learned counsel for the

respondents supports the order passed by the Family Court.

He submits that the trial Court has rightly awarded the

maintenance in favour of the non-applicants. He further

submits that the applicant has physically assaulted the non-

applicant No.1 for dowry. She is residing separately from the

applicant since last 16 years, however, he has not paid any
maintenance to her. It has further been submitted that the

applicant has entered into the second marriage. For the said

purpose, she has filed copy of the voter list. It is further

submitted that the applicant is having 20 acres of irrigated

land and she has also filed khasra documents showing the

ownership of the said land of the applicant.

5. In light of the aforesaid, he submits that the

amount awarded by the Family Court is just and proper. He

further relied on a judgement passed by the Division Bench

of this Court reported in Makarchand S/o Kanhaiya Gauli

vs. Smt. Leelabai, w/o Makarchand Gauli another,

2008 (II) MPJR 100. On the basis of said judgement, he

submits that the application for maintenance can be filed by

the wife at any time and no limitation is prescribed for filing

the application.

6. Heard learned counsel for the parties and

perused the record. From perusal of the record, it reveals

that the applicant and non-applicant have entered into a

marriage on 15/02/1994. After three years of marriage, the
applicant started living separately from the non-applicant and

resided with her parents and all of sudden in the year 2015

she filed an application under Section 125 of the Cr.P.C. for

maintenance. The Family Court after considering all the

material available on record passed the order thereby

awarding the maintenance of Rs.5000/- per month to the

applicant No.1 and Rs.2000/- to applicant No. 2. Being

aggrieved by that order, the applicant has filed the present

revision.

7. From perusal of the record it reveals that the

applicant had entered into the second marriage. This fact is

clear by the non-applicant on the basis of the statement

recorded by the daughter and father of the non-applicant

No.1. It is clear that the applicant physically assaulted the

non-applicant No.1 after consuming liquor and has also

demanded dowry from her. Thus, there were sufficient

grounds for the non-applicant No.1 to reside separate from

the applicant. So far as the income of the applicant is

concerned, the non-applicant has produced copy of Khasra

entries before the Family Court which shows that 20 acres
land have been recorded in the name of the applicant and

this fact was not denied by the applicant in his cross

examination and, therefore, on the basis of this, the Family

Court has awarded the maintenance of Rs.5000/- to non-

applicant No.1 and Rs.2000/- to non-applicant no.2 till her

marriage. Thus, the findings recorded by the Family Court is

based on due appreciation which does not call any

interference. However, regarding the question of limitation

for filing the application by the non-applicant after the period

of 16 years is concerned, the Division Bench of his Court in

the case of Makarchand s/o Kanhaiya Gauli (supra) in

para 6 10 has held as under :-

“6. On bare perusal of the provisions
of Section 125 of the Code we find that
the provisions does not prescribe any
period of limitation. The language of
Section 125(1) is clear and specific.

Eventuality arises when any person
having sufficient means neglects or
refuses to maintain his wife, legitimate or
illegitimate minor child, legitimate or
illegitimate child (not being married
daughter) who has attained majority, his
father or mother, unable to maintain
herself or himself. Thus, two things
which are required to be proved in an
application for maintenance namely :(i)
person having sufficient means neglects
or refuses to maintain wife, children or
parents, and (ii) they are unable to
maintain herself or himself.

10. Thus, this provision is for grant of
maintenance to the wives who are
unable to maintain themselves. So the
order can be passed when it is proved
that wife is unable to maintain herself
and her husband has ‘sufficient means’
and is willfully neglecting to maintain
her. Similarly this provision is applicable
to children and parents. What is required
to be seen by the Magistrate is whether
wife, parents or children are unable to
maintain themselves. No period of
limitation is prescribed in the Code.
Inordinate delay in filing the application
will not be a ground to reject the
application as cause of action accrues to
the applicant everyday when person
having sufficient means neglects or
refuses to maintain his wife,parents or
children.”

8. Thus, as per the said judgement, no period

of limitation has been prescribed under the Act for filing an

application under Section 125 of the Cr.P.C.. So far as the

other judgements passed by the Apex Court which are relied

by the counsel for the applicant would not be applicable in

the present case as the application has been filed under the

Domestic Violence Act.

9. In view of the aforesaid, I do not find any

reason to interfere into the said revision. The revision is,

accordingly, dismissed.

(MS. VANDANA KASREKAR)
JUDGE

manju

Digitally signed by
MANJU
CHOUKSEY
Date: 2017.11.28
15:02:18 +05’30’

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