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Pawan Kumar vs State & Ors on 3 April, 2018

”HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 96 / 2014
Pawan Kumar s/o Sh. Bajrang Lal by caste Mali, Aged about 39
years, Resident of Ward No.26, Moti Singh Ki Dhani, District-
Jhunjhunu.
—-Petitioner
Versus
1. State of Rajasthan.
2. Smt. Sarla W/o Pawan Kumar D/o Nand Lal, by caste Mali,
Resident of Ward No.4, Churu.
3. Bhawani Shankar S/o Pawan Kumar (minor), through
respondent no.2 mother.
—-Respondents
__
For Petitioner(s) : Mr. Baljit Sandhu.
For Respondent(s) : Mr. Deepak Choudhary, PP.
Mr. Pritam Solanki.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment: 03/04/2018

By way of the instant misc. petition under Section 482

Cr.P.C., the petitioner Pawan Kumar has approached this Court for

challenging the order dated 20.11.2013 passed by the learned

Additional Sessions Judge, Churu in revision, affirming the order

dated 15.09.2011 passed by the learned Chief Judicial Magistrate,

Churu in Misc. Case No.66/2002 granting maintenance to the

respondents Smt. Sarla, being the wife and son of the petitioner

and Kumari Mamta, his daughter (who is not a party respondent in

the instant proceedings).

On the previous date of hearing i.e. on 10.01.2018, this
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[CRLMP-96/2014]

Court had directed the learned counsel to keep their respective

parties present in the Court so as to explore the possibility of

amicable settlement. The respondent Smt. Sarla was present in

the Court at the time of arguments but, the petitioner has failed to

appear. Thus, the final arguments were heard on merits.

Learned counsel Shri Sandhu representing the petitioner

vehemently urged that as a matter of fact ,the respondent Smt.

Sarla has intentionally abandoned the matrimonial home without

any justification and thus, she is not entitled to claim any

maintenance whatsoever from the petitioner herein. He further

submitted that the respondent No.3 Bhawani Shankar, being the

son of the petitioner and Smt. Sarla, has attained majority and

thus, he is not entitled to claim any maintenance whatsoever. He

further urged that in the statement of Smt. Sarla recorded by the

learned Magistrate, she has admitted that she did not desire to go

and live in her matrimonial home. He further urged that the

criminal case lodged by the respondent Smt. Sarla against the

petitioner and his family members for the offences under Section

498A, 406 and 120B IPC resulted into their acquittal vide

judgment dated 14.09.2006. Likewise, the divorce petition filed by

Smt. Sarla against the petitioner on the ground of cruelty was also

dismissed by the learned District Judge, Churu vide judgment

dated 22.02.2008. He further pointed out that in her statement

recorded in proceedings under the Guardians and Wards Act,

registered in the court of District Judge, Jhunjhunu, Smt. Sarla

admitted that she used to work as a teacher and was earning

livelihood in this manner. On these grounds, learned counsel Shri
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[CRLMP-96/2014]

Sandhu urged that the orders passed by the courts below are

absolutely illegal and perverse and deserve to be set aside.

Per contra, Shri Pritam Solanki learned counsel representing

the respondents vehemently urged that the petitioner started

harassing Smt Sarla soon after their marriage. Unwarranted

fetters were put on her freedom. She as well as her children were

not provided food or means of sustenance . The prior proceedings

under Section 125 Cr.P.C. and those under Sections 498A and 406

IPC were undertaken on genuine grounds but the petitioner got

the same terminated through compromise after giving false

assurances. However, he continued his cruel behavior with the

respondents whereupon, fresh proceedings under Section 125

Cr.P.C. came to be lodged. That Smt Sarla categorically denied

having any source of sustained livelihood/ income. On these

grounds, he craved dismissal of the petition .

I have given my thoughtful consideration to the arguments

advanced at Bar and have gone through the impugned orders as

well as the material available on record.

It is not in dispute that the respondents were turned out by

the petitioner from the matrimonial house way back in the year

2002 and since then, they are living in virtual dereliction. Even

though, the order of maintenance was passed way back in the

year 2011 the petitioner has not paid a single penny to his wife

and children. Whilst entertaining the instant misc. petition, this

Court was compelled to direct, vide order dated 17.01.2014, that

the petitioner shall clear off the maintenance dues payable to the

children. Only under compulsion of the said order did the
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[CRLMP-96/2014]

petitioner made payment of a sum of Rs.87,000/- to his two minor

children. However, till date, not a single penny of maintenance has

been paid to the wife. During his evidence, the petitioner claimed

that Sarla used to earn livelihood by doing stitching jobs, etc. But

now, a plea has been taken that she is having substantial earning

by working in a private school. However, on perusal of the orders

passed by the trial court as well as the revisional court, it is

apparent that during cross-examination of Sarla in the present

proceedings, no suggestion was given to her regarding she having

any significant source of income by teaching in any private school.

So far as the rejection of the divorce petition and the acquittal of

the accused in the criminal case is concerned, those decisions

cannot have any significant bearing on fate of the present

application because legal obligation of a husband to maintain his

wife has no correlation with his exhoneration in proceedings under

Sections 498A and 406 IPC. Likewise, mere rejection of the

divorce petition is also not relevant for deciding the present issue

inasmuch as, the only finding given in the judgment dated

22.02.2008 passed by the learned District Judge, Churu is that the

respondent failed to prove the allegation of cruelty against the

petitioner. However, it is an undisputed fact that the respondent

is forced to live out of the matrimonial home with her children for

the last more than 15 years and the petitioner has not provided

any subsistence to them. Even the maintenance awarded to the

children by the trial court was honoured and paid only after this

Court affirmatively directed the petitioner to do so.

In view of the above discussion, this Court is of the firm
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[CRLMP-96/2014]

opinion that the applicants i.e. respondent being the petitioner’s

wife Smt. Sarla, son Bhawani Shankar (till he attained majority)

and daughter Kumari Mamtesh (till she is married), are entitled to

claim and receive maintenance from the petitioner. I find no

shortcoming, either factual or legal, in the impugned orders dated

20.11.2013 passed by the learned Additional Sessions Judge,

Churu in revision affirming the order dated 15.09.2011 passed by

the learned Chief Judicial Magistrate, Churu, so as to cause

interference therein while exercising inherent powers of this

Court conferred by Section 482 Cr.P.C.

As a consequence of the above discussion, the instant misc.

petition deserves to be dismissed.

However, it is made clear that the order of maintenance qua

the respondent Bhanwani Shankar shall remain effective only till

the date of his attaining the majority. Furthermore, Kumari

Mamtesh (though not a party respondent in these proceedings)

will be entitled to claim maintenance from the petitioner till she is

married.

With these observations and directions, the instant misc.

petition is dismissed as being devoid of merit.

(SANDEEP MEHTA), J.

Tikam/7

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