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Smt. Prabhawati vs State Of U.P. And Another on 13 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 82

Case :- CRIMINAL REVISION No. – 3810 of 2016

Revisionist :- Smt. Prabhawati

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Shiv Ram Dubey,Uma Nath Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Pradeep Kumar Srivastava,J.

Shri Shiv Ram Dubey, learned counsel for the revisionist has filed a supplementary affidavit. It is taken on record.

List revised. None appears on behalf of the opposite party no.2.

Heard learned counsel for the revisionist, learned A.G.A. and perused the record.

This revision has been filed against the impugned order dated 15.9.2016 passed by learned Additional Sessions Judge/F.T.C. II, Basti in Case No.1548/11/2014 (Smt.Prabhawati vs. Ram Ajore) by which the application of the revisionist, the wife of the opposite party no.2 under Sectionsection 125 Cr.P.C. has been rejected by the court below.

Aggrieved by the impugned order, this revision has been filed on the ground that the learned court below has not applied his judicial mind while passing the impugned order. After May, 2015, the applicant remained unemployed and in this regard documentary evidence was submitted before the court below which was issued by the Headmaster of school concerned and as such the impugned order has been passed and neither the fact that the applicant was not at all employed and was unable to maintain herself, was not considered by the court below nor it was considered that the husband who is carpenter and earning more than 20,000/- in a month is capable to maintain her. Therefore, the impugned order is beyond evidence and is liable to be set aside.

It has been further submitted that an application was given by the revisionist, the wife of the opposite party no.2 under Sectionsection 125 Cr.P.C. stating that about eight years ago she was married with opposite party no.2 and adequate dowry was given. Thereafter her husband and his relatives started demanding additional dowry, motorcycle, Television and C D Player and threatened that she would not be permitted to live there unless she brings the additional dowry. On that account her husband and family members continued to harass the revisionist and on 5.8.2004 after taking all the jewellery from the revisionist with collusion of family members, they started marpit and said her to get out from their house. A First Information Report was lodged by the revisionist for the offence under Sectionsections 498A, Section323 I.P.C. and 3/4 D.P. Act. It has further been stated by learned counsel for the revisionist that she was taken to her matrimonial house (in-laws) by her family members and even then after a lot of request from their side, the in-laws refused to accommodate her there and they started living in Pakka house which was situated on the road and the revisionist started living in the old house and any how she is maintaining herself by getting help from her parents side. The husband is not providing maintenance to her. It has also been stated that earlier also she had filed an application for maintenance. Thereafter her husband took her back to the matrimonial house and therefore, she did not pursue that application which was dismissed for want of prosecution. It has been further submitted that again her husband after committing marpit with her finally expelled her from his house and stopped giving maintenance to her. Therefore, she should be provided Rs.4,000/- per month as maintenance.

Against that application the opposite party no.2-husband filed a written objection admitting the marriage and stating that the revisionist is a woman of independent mind and further stated that she was never harassed by him and by his family members nor any additional dowry was demanded but she lodged a false First Information Report of dowry harassment. Therefore, the joint family was broken and a partition took place and his wife, the revisionist is living in the house allotted to the husband. The husband is living separately. It is next submitted that she does not permit the husband to live there nor she permits him to take crops or income from the crops. He is an unemployed person and any how maintaining himself by working as a labour. There is no much source of income for him whereas the applicant is having her own house and is earning by job and she is capable of maintaining herself. The husband is prepare to bring her back but she refuses.

In the evidence the applicant was examined as PW-1 and Radheyshyam was also examined as PW-2 in support.

Opposite party on.2 has been examined himself as DW-1 and one Mani Ram has been examined as DW-2. In documentary evidence the revisionist, wife of the opposite party no.2 has submitted the certificate to the effect that she is no longer working as cook since May 2015 issued by Principal on 6.7.2015. The husband has filed documentary evidence by way of certificate issued by Gram Pradhan on 16.1.2012 that she is working as a cook.

After hearing both the parties the court below rejected the application of the revisionist.

The admitted fact in the application of the wife is that she is living in the portion of old house allotted to the husband. It is also admitted that earlier an application was filed under Sectionsection 125 Cr.P.C. and the same was disposed of on the basis of compromise. An explanation in this regard which has been given by wife is that when she filed that application she was taken back by the husband and since then she is living alone in his house and is not providing maintenance at all. On the basis of the evidence on record the court below concluded that the revisionist-wife is living with husband in his house and therefore, it cannot be said that she is living separately from the husband.

The submissions of learned counsel for the revisionist-applicant is that even though, the revisionist, the wife of opposite party no.2 is living in the house of the husband, she has nothing for maintenance and has no income at all.

On the contrary it has been alleged by the husband that in a school she is working as a cook and receiving honorarium, therefore she is not at all dependent on the husband for maintenance as hiswife has admitted in her evidence that she is working as a cook from where she is getting honorarium.

On a perusal of the record and certificate it appears that since May 2015 she is no longer working as a cook in school and therefore she has become income less and if it was so, this change circumstances should have been mentioned by way of giving additional pleading before the court below as wife of opposite party no.2 was examined in the year 2013 and at that time she was working as a cook and was receiving honorarium, hence on that basis the court below rightly rejected the application.

In view of the above discussions I do not find any infirmity and illegality in the impugned order and there is no jurisdictional error at all. It is still open for the revisionist-wife to file a fresh application showing that she has lost her job as a cook and now she has become income less and is also unable to maintain herself.

If fresh application by the revisionist-wife to that effect is given, the same shall be considered afresh by the court below without being influenced by any observations made by the court below in the impugned judgement and also by this Court in this judgement.

In view of the above, I find no force in this revision.

With the above observations, this revision is accordingly disposed of.

Dated:13.08.2019

RK

 

 

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