Smt. Manju And Another vs State Of U.P. And Another
2021 Latest Caselaw 4534 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 74
 
Case :- CRIMINAL REVISION No. - 168 of 2021
 
Revisionist :- Smt. Manju And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ajay Kumar Mishra
 
Counsel for Opposite Party :- G.A.,Ajay Kumar Mishra
 

 
Hon'ble J.J. Munir,J.

1. This revision is directed against an order of Mr. Kali Charan-II, learned Principal Judge, Family Court, Sambhal at Chandausi dated November the 5th, 2020 dismissing the first revisionist's application for maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for short, the 'Code').

2. Heard Mr. Ajay Kumar Mishra, learned counsel for the revisionists, Mr. Ajay Kumar Mishra, learned counsel for opposite party no. 2 and Mr. S.S. Tiwari, leaned AGA appearing on behalf of the State and perused the lower court record.

3. The learned Principal Judge, Family Court has dismissed the application for maintenance on a finding that the wife has refused to live with the husband, despite his offer to maintain her, without there being just ground for doing so; or in other words, without sufficient cause. The learned Judge has relied upon the second proviso to sub- Section (3) of Section 125 of the Code to return that finding, though without saying so specifically. The learned Judge considered the evidence of the wife, where she accused the husband of demanding dowry and treating her with cruelty in connection with dowry demand. The learned Judge disbelieved the wife's case of cruelty in connection with dowry demand for the reasons, amongst others, that the wife's case about demand of dowry is not believable, inasmuch as she does not say in her evidence, which make/brand of the motorcycle, the husband demanded in dowry. The learned Judge has remarked that it is not mentioned in the application under Section 125 of the Code, which brand of the motorcycle the husband demanded. He has gone on to say that it is commonplace in villages these days that people know the names of the manufacturers of various motorcycles in the market. The learned Judge has, for the most part of his reasoning to hold that there is no sufficient cause for the wife to live apart from her husband, depended on the facts that there is a case about abduction, where the husband's brother, Ajit Singh was abducted and released later on after three days. The learned Judge has noted that an application under Section 156(3) Cr.P.C. has been moved before the learned Additional Chief Judicial Magistrate, Amroha. The learned Judge has also noticed that there is another complaint instituted by the husband's father against the members of the wife's family, relating to a crime. It has, particularly, been remarked that both these cases have been brought prior to the present proceedings. The learned Judge has concluded that the present proceedings have been initiated by the wife in order to bargain a settlement for her family in the criminal case, instituted at the instance of her father-in-law against her brother and other family members. In the opinion of the learned Judge, it is for that reason that the wife has come away from her matrimonial home, and has instituted the present proceedings under Section 125 Cr.P.C.

4. So far as the finding about the dowry demanded by the husband, being not believable on ground that the make of motorcycle has not been disclosed by the wife in her application, is concerned, it is clearly specious. It is commonplace that many a individual are conscious about the make of a motor vehicle, while others may not  be able to refer the make at all. The fact that the motorcycle's make that the husband demanded has not been mentioned by the wife, cannot make for any principle or yardstick on the basis whereof the truthfulness about the allegation of demand may be judged. This part of the finding recorded by the learned Judge, in the opinion of this Court, is clearly flawed.

5. The other consideration that has heavily weighed in rejecting the wife's claim for maintenance, is/are the prosecution(s)-one or two-instituted by her father-in-law against her brother and other family members. Generally speaking, if the parties are living happily, or even not so happily, it is almost impossible to believe that in-laws would bring criminal cases against each other for a trifling. Of course, if a serious crime is committed, the case would be reported to the Police. But, the kind of the offence alleged, where the facts show that there was a case of abduction and the abductee was released after three days, does not inspire the confidence with the Court that there was any basis of a genuine prosecution, or bona fide complaint made to the Magistrate. These kind of allegations generally come when the couple are estranged, or the matrimonial life is in rough waters. The nature of these allegations and the fact that the father-in-law has instituted criminal proceedings or moved to institute them under Section 156(3) of the Code, is a circumstance, which lends itself no other inference than that, that the husband and the father-in-law, or all the in-laws, do not want the wife to be with her husband; they wish the estrangement to continue.

6. That apart, learned counsel for the revisionist has brought to this Court's notice a copy of the order dated 15.12.2018 passed by the learned 1st Additional Chief Judicial Magistrate, Amroha in Complaint No. 448 of 2017. This complaint commenced on an application under Section 156(3) Cr.P.C., seeking a direction to the Police to register and investigate a case of abduction attributed to the wife's brother. This application was treated as a complaint and proceeded with as such. It was dismissed under Section 203 of the Code by the Magistrate vide order dated 15.12.2018. A reading of the order that the Magistrate has passed, while dismissing the complaint, shows that he has recorded the following findings:

"..........यदि परिवादी के द्वारा प्रस्तुत उपरोक्त दोनों साक्षियों की गवाही पर विश्वास किया जाये, तो जब घटना कारित होते समय उनके द्वारा संपूर्ण घटनाक्रम स्वयं अपनी आंखों से देख लिया गया था, तो उसी समय उनके द्वारा परिवादी को घटनास्थल से क्यों नहीं बचाया गया। यह तथ्य समझ के परे है। जिस प्रकार से परिवादी द्वारा प्रस्तुत दोनों गवाहों ने एक जैसे रटे रटाये बयान घटना का पूरा विवरण देते हुए दिये, जिससे वे पूरे तरीके से बनावटी एवं काल्पनिक प्रतीत होते है।

प्रस्तुत मामले में न्यायालय द्वारा धारा 202 दं०प्र०सं० के अंतर्गत जांच आख्या थाने से तलब की गयी। उपरोक्त जांच आख्या में यह स्पष्ट रूप से अंकित किया गया है कि विपक्षीगण परिवादी के ससुरालीजन है। परिवादी की पत्नी मंजू ने परिवादी के विरूद्ध धारा 498ए के अंतर्गत मुकदमा दर्ज कराया हुआ है। जिसमें जांच अधिकारी ने एफ०आई०आर० की प्रति भी साथ संलग्न की है। जांच अधिकारी के अनुसार परिवादी ने अपनी पत्नी को बहुत पहले से निकाल दिया था तथा उन्हें आशंका थी कि वह उनके विरूद्ध दहेज उत्पीड़न का मुकदमा दर्ज कराया। इससे बचने के लिए इससे पूर्व भी परिवादी द्वारा एक अभियुक्त पर मुकदमा अपने ससुरालीजनों के विरूद्ध दर्ज कराये जाने का प्रयास किया जा चुका है। जिसमें इसी थाने द्वारा जांच आख्या न्यायालय के समक्ष पेश की गयी थी। उपरोक्त जांच आख्या के आधार पर वह मुकदमा दर्ज कराने में सफल नहीं रहे। पत्रावली के अवलोकन से यह स्पष्ट है कि तथाकथित जांच आख्या की प्रति पत्रावली में संलग्न है।

उपरोक्त समस्त तथ्यों के अवलोकन से यह पूरी तरह से स्पष्ट है कि परिवादी जान-बूझकर अपने अपहरण की बनावटी कहानी बनाकर न्यायालय के समक्ष पेशबंदी के तहत मुकदमा दर्ज कराना चाह रहा है। बार-बार अपहरण की कहानी बनाकर न्यायालय के समक्ष मुकदमा दर्ज कराये जाने का प्रयास किया जाना न्यायालय के अमूल्य समय को नष्ट किए जाने का प्रयास है।"

7. This Court must remark here that the order dated 15.12.2018 passed by the Magistrate was a very valuable piece of evidence but for no explicable reason, was it filed before the learned Principal Judge, Family Court by the learned counsel representing the wife before the Family Court. The said document ought to have filed before the Family Court.

8. Be that as it may, this document is a judgment of the Magistrate, relating to a matter in issue. It clearly shows that the criminal case instituted by the husband's father against wife's relatives is a got up case, brought with the intention to forestall any legal action against the husband and his family by the wife, after she had been thrown out. Even if this order had not been there, in the opinion of this Court, the premises on which the criminal proceedings were instituted or attempted to be instituted by the second respondent's in-laws clearly betray motivation, besides falsehood. These ought not to have been taken into consideration by the learned Judge, in the Court below. This Court also finds that there is not much evidence that has come on record regarding the husband's income and his means. The order passed by the Magistrate is also required to be brought on record before the learned Principal Judge, Family Court.

9. In the totality of the circumstances, while the impugned order cannot be sustained, the maintenance matter is required to be determined afresh on merits, bearing in mind the remarks in the judgment.

10. In the result, this revision is allowed in part. The judgement and order dated 05.11.2020 passed by the Principal Judge, Family Court, Chandausi is hereby set aside with a remit of the matter to the Family Court to determine the wife's application afresh within a period of two months next, in accordance with law.

11. Since, both parties are represented before this Court, it is ordered that both of them will appear before the learned Principal Judge, Family Court on 05.04.2021. Thereafter, the learned Judge will fix a suitable and short dates to dispose of the matter, as directed. It would be open to the revisionist to make an application for interim maintenance, which if made, shall be decided by the Family Court within one month of the same being moved.

12. Let this order be communicated to the learned Principal Judge, Family Court, Sambhal at Chandausi by the Joint Registrar (Compliance).

Order Date :- 24.3.2021

Deepak