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
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Shri Satyendra Jain, learned counsel for the
applicant.
Shri Ishteyaq Hussain, learned counsel for respondent
No.1.
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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’