District Mandi vs Smt. Rekha Devi
2021 Latest Caselaw 3986 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     ON THE 18TH DAY OF AUGUST, 2021

                                      BEFORE




                                                                       .
                 HON'BLE MR. JUSTICE SANDEEP SHARMA





     CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 23 OF 2020

    Between:-





    SHRI GANNSHYAM
    SON OF SHRI GEEJU RAM,
    RESIDENT OF VILLAGE PATTI,
    POST OFFICE KAO, TEHSIL KARSOG





    DISTRICT MANDI,
    H.P.
                                                                   ... PETITIONER
    (BY MR. T.K. VERMA, ADVOCATE)

    AND

    1.    SMT. REKHA DEVI
          WIFE OF GANSHYAM,

    2.    MASTER PAWAN KUMAR



          SON OF SHRI GHANSHYAM
          BEING MINOR THROUGH HIS NEXT FRIEND. MOTHER
          SMT. REKHA DEVI W/O SHRI GANSHYAM,




          BOTH ARE THE RESIDENT OF
          VILLAGE PATTI, POST OFFICE KAO,
          TEHSIL KARSOG, DISTRICT MANDI,





          H.P.
                                             .. RESPONDENTS





    (MR. RAVINDER THAKUR, ADVOCATE FOR R-1 & R-2)


     This petition, coming on for orders this day, the court passed the following:

                                    ORDER

Instant petition filed under S.482 CrPC lays challenge to

order dated 8.3.2019 passed by learned Additional Sessions Judge-I,

Mandi, HP camp at Karsog, allowing Criminal Revision No. 33/2013

filed under S.397 CrPC by the respondents, laying therein challenge to

order dated 31.7.2013 passed by learned Judicial Magistrate First

.

Class, Karsog, District Mandi, whereby petition having been filed by

them under S.125 CrPC, came to be dismissed.

2. Precisely, the facts of the case as emerge from record, are

that marriage inter se petitioner and respondent No.1 was solemnized in

the year 2009 as per customs prevailing in the society and since then

both were living as husband and wife. Out of their wedlock, one son

namely Pawan Kumar, respondent No.2 was born. Since after some

time of marriage, certain differences cropped inter se parties, and

petitioner under the influence of liquor started giving beatings to the

respondent No. 1, she was compelled to leave her matrimonial house.

Allegedly, on the night of 15.9.2011, petitioner gave beatings to the

respondent No.1 under the influence of liquor and turned her out of his

house, as such respondent No.1 was compelled to take shelter in the

house of her neighbourer and on the next day, she went to her parental

house. Record reveals that respondent No.1 filed an application before

Sub Divisional Magistrate Karsog, praying therein for the custody of her

minor son i.e. respondent No.2. Sub Divisional Magistrate Karsog

directed the petitioner to take respondent No.1 back to his house,

however, outside the court complex, petitioner threatened the

respondent No.1 with dire consequences, if she comes back to his

house and since then respondent No.1 alongwith her minor son started

residing at her parental house. Respondent No.1 instituted proceedings

under S.125 CrPC, praying therein for maintenance on the facts and

.

circumstances narrated herein above and claimed that after 16.9.2011,

petitioner never came to take her back as well as her minor son, rather,

he is threatening her with dire consequences on mobile phone, as such,

it is very difficult to live with petitioner. She submitted before learned

court below that she being a poor lady has no source of income,

whereas, petitioner has income of Rs.9000 from all sources and as

such, he be directed to provide adequate maintenance to them.

3. Aforesaid plea made on behalf of respondent No.1 came to

be resisted by the petitioner, who stated before the learned trial court

below that at no point of time, he compelled respondent No.1 to leave

the matrimonial house rather, she of her own volition left his company

and as such, she is not entitled to any maintenance.

4. Learned trial Court, on the basis of pleadings as well as

evidence adduced on record, dismissed the petition filed on behalf of

respondent No.1. Being aggrieved and dissatisfied with order dated

31.7.2013 passed by Judicial Magistrate First Class Karsog, Mandi,

respondent No.1 preferred a Cr. Revision under S. 397 CrPC before

learned Additional Sessions Judge, Court No.1, Mandi, who vide

judgment dated 8.9.2019, set aside the order dated 31.7.2013 passed

by learned trial Court and directed the petitioner herein to pay sum of

Rs.1,000/- to respondent No.2 and Rs.1500/- to respondent No.1 as

maintenance under S.125 CrPC. In the aforesaid background, petitioner

has approached this court in the instant proceedings, praying therein to

.

dismiss the applications of respondents, after setting aside judgment

dated 8.7.2019 passed by Additional Sessions Judge-I, Mandi camp at

Karsog.

5. Having heard learned counsel for the parties and perused

material available on record this court finds that there is no dispute inter

se parties that respondent No.1 is the legally wedded wife of the

petitioner. It is also not in dispute that respondent No.2 is legitimate son

of the petitioner. Though in the case at hand, material available on

record reveals that for four years after marriage, respondent No.1

remained in the company of petitioner, but thereafter on account of

compelling circumstances, she left company of petitioner and started

residing with her parents. In the case at hand, respondent No.1 alleged

that the petitioner used to give her beatings to her under the influence of

liquor and on 15.9.2011 she was ousted from the matrimonial house by

the petitioner under the influence of liquor as such, she was compelled

to take shelter in neighbourer's house.

6. Learned trial Court, after having perused pleadings and

evidence adduced on record, arrived at a conclusion that since

respondent No.1 has been not able to prove the contents of complaint

by entering into witness box, she cannot be held entitled to

maintenance. However, aforesaid finding returned by learned trial Court

came to be reversed vide judgment dated 8.3.2019 passed by learned

Additional Sessions Judge-I, who after having scanned entire evidence

.

vis-à-vis complaint of respondent No.1, rightly came to the conclusion

that once in the complaint under S.125 CrPC, respondent No.1 has

specifically leveled allegations with regard to cruelty meted to her by

petitioner and mere omission, if any, on the part of respondent No.1 to

state such facts in her examination-in-chief /cross-examination could

not be made a ground by learned trial Court to reject prayer for

maintenance made by respondent No.1. Record reveals that the

petitioner in no uncertain terms leveled allegations of physical and

mental harassment by petitioner but, while deposing in the court, she

did not state clearly with regard to nature and manner in which cruelty

was meted to her at the hands of the petitioner. While considering

prayer for maintenance under S.125 CrPC, court besides taking note of

pleading and evidence adduced on record is also under obligation to

take care of other facts and circumstances, which may be relevant for

adjudication of application filed before it. In the case at hand, it has

come on record that respondent No.1 after being ousted from

matrimonial house had filed an application to Sub Divisional Magistrate,

Karsog seeking custody of her minor son. It is not in dispute that with

the intervention of Sub Divisional Magistrate, Karsog, custody of minor

son of respondent No.1 was handed over to her and at that time in

court complex itself, petitioner threatened respondent No.1 with dire

consequences. Apart from above there is material evidence, which

indicates harassment of respondent No.1 at the hands of the petitioner.

.

Once respondent No.1 left company of the petitioner, he served her with

legal notice, bare perusal of which reveals that instead of persuading

respondent No.1 to join his company, petitioner threatened to constitute

legal proceedings, as such, learned Additional Sessions Judge-I, rightly

observed in its order that bare perusal of contents of legal notice itself

amounts to cruelty towards the respondent No.1.

7. Leaving everything aside, once factum with regard to

marriage of petitioner with respondent No.1, stands admitted by the

petitioner, petitioner cannot refuse to maintain his wife and child on the

ground that he is ready to take respondent No.1 back. Since relation

inter se petitioner and respondent No.1 are not cordial as is evident

form material available on record, this court or any other court of law,

cannot compel respondent No. 1 to live with the petitioner. Since it

stands duly proved on record that petitioner earns Rs. 8000/- per

month, this court finds no illegality or infirmity in the order passed by

learned Additional Sessions Judge-I, whereby he has awarded

Rs.1000/- to respondent No.2 and Rs.1500 to respondent No. 1 per

month. Since the petitioner has not been able to prove that respondent

No.1 has some independent source of income, he is otherwise under

obligation to maintain both the respondents, as such, there is no

illegality or irregularity in the judgment of Additional Sessions Judge,

which is accordingly upheld.

8. In view of above, present petition is devoid of merit and is

.

dismissed accordingly.

Pending applications, if any, are disposed of. Interim

directions, if any, stand vacated.

(Sandeep Sharma), Judge

August 18, 2021 (vikrant)