Madhya Pradesh High Court
Anand Vyas vs Smt. Yojna on 13 December, 2023
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 13 th OF DECEMBER, 2023
CRIMINAL REVISION No. 2067 of 2022
BETWEEN:-
ANAND VYAS S/O BANSHILAL VYAS, AGED ABOUT 47
YEARS, OCCUPATION: AGRICULTURIST, R/O: BEHIND
PRATAP TAKIZ GOLAPUR ROAD, HARDA (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI NILESH SHARMA - ADVOCATE)
AND
SMT. YOJNA W/O ANAND VYAS, AGED ABOUT 43 YEARS,
R /O : 51-B VIDHYAPATI NAGAR, NEELGANGA, UJAIN
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI DINESH CHANDRA KASNIYA - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
Applicant has filed this criminal revision under Section 19(4) of Family
Court Act,1984, being aggrieved by the order dated 02.05.2022 passed by the
Principal Judge, Family Court, Ujjain in MJCR No.192/2017, whereby an
application under Section 125 of Cr.P.C. filed by the respondent/wife has been
allowed and awarded maintenance of an amount of Rs.4,000/- per month to the
respondent/wife from the date of application.
2. Briefly stated facts of the case are that marriage was solemnized
between the parties on 17.01.2012 as per the Hindu ritual and rights, due to their
wedlock no child was born, but applicant and his family forced the respondent
to transfer the house of her family in the name of applicant, when she refused to
do so, then applicant and his family members have physically and mentally
harassed her and have also demanded dowry in the year 2012 and expelled her
from their house. She does not do any work and she has no source of income,
while the applicant carries business of fertilizer by which he is earning
Rs.1,00,000/- per month and applicant having 70 Bigha agricultural land situated
at Heerapur by which he earned Rs.5,00,000/- per year and having two houses
at Harda and Heerapur, therefore, wife of applicant filed a petition under
Section 125 of Cr.P.C. for grant of maintenance amount.
3. The trial Court after considering the evidence produced by both the
parties has issued direction to pay maintenance amount of Rs.4,000/- to the
respondent / wife subject to final adjudication from the date of application.
Being aggrieved by the impugned order, applicant has preferred this revision.
4. Learned counsel for the applicant submits that impugned order passed
by the trial Court is contrary to the law, facts and a decree under Section 19 of
Hindu Marriage Act, which was filed for restitution of conjugal rights passed by
the respondent by the competent civil Court, which was not complied with the
respondent/wife, therefore, under Section 125 of Cr.P.C. she does not deserve
for any maintenance amount as she is living separately from her husband /
applicant without any sufficient reason. The trial Court has ordered to pay
maintenance amount from the date of application, which is not justify, because
no specific reason has been assigned by the trial Court for awarding the
maintenance amount from the date of application. Applicant lives in a joint
family and do the agricultural work and does not earn sufficient income. Hence,
he prays that impugned order be set aside.
5. Per contra, learned counsel for the respondent/wife opposes the prayer
by submitting that the impugned order passed by the trial Court is just and
proper and for any reference.
6. Having heard rival contentions and perused the documents filed on
record by both the parties, it is observed that the contention of the applicant
with respect to the finality of decree drawn for restitution of conjugal rights
deserves consideration.
7. Applicant / husband before the trial Court deposed that he has filed a
petition under Section 9 of Hindu Marriage Act before the Family Court, Harda
and due to the non-appearance of the respondent/wife matter was proceeded
ex-parte against her and in the month of January, 2015 ex-parte judgment has
been passed in his favour, but later on bi-parte judgment has been passed again
in his favour. These judgments are (Ex.-NA-1 and Ex. NA-2). Despite the
judgment of the civil Court respondent/wife did not comply with the relief and
not turn up towards his house to live with him.
8. Respondent/wife Yojna (AW-1) before the trial Court admits in her
deposition that she did not file any revision against the order of restitution of
conjugal right because she was not aware with the said order, but from perusal
of the order (Ex.NA-2), it reveals that judgment has been passed by the
concerned Family Court in presence of both the parties. Respondent Yojna
appeared before the concerned Court. Her statement was also recorded and she
admits in Para 8 of her cross-examination that she was appeared in that case at
Harda Court, therefore, the contention of the respondent/wife cannot be
accepted that respondent is not aware about the decree of restitution of
conjugal right passed against her.
9. Apart from the above, respondent Yojna Dubey admits in her cross-
examination before the trial Court that she appeared before the Harda Court in
that case and Court has sent both of them for mediation proceedings and it is
also true that in her absence Court has passed ex parte, then she filed an
application under Order 9 Rule 13 of C.P.C. It is proved that bi-parte
restitution of conjugal rights decree has been passed against the
respondent/wife, but she neither challenged the decree nor complied with the
decree.
10. It is a settled position of law that a wife disobeying the decree for
restitution of conjugal rights of her husband cannot file an application under
Section 125 of Cr.P.C. on the ground that he has neglected to maintain her. In
the case of Theressa Gurudas Vs. K.S. Gurudas 1988 (2) Crimes 742, it
has been held that "where only after the decree for restitution of conjugal
rights had been passed, the petition has been filed after a long lapse of more
than 12 years and notwithstanding a decree for husband, the Courts below
were justified in holding that the wife had failed to prove that the husband
had neglected or refused to maintain her."
11. In view of the aforesaid law laid down, this Court is of the considered
opinion that respondent/wife is disobeying the order directing restitution of
conjugal rights passed by the competent Court since 2012, she did not go to
her matrimonial house and is living separately from her husband without any
sufficient and reasonable cause. Although she alleged that she was subjected to
mentally and physically harassment by her husband and in-laws on account of
non-fulfillment of their demand of dowry, but she neither lodged any FIR for
demand of dowry nor made any complaint regarding the domestic violence by
her husband and in-laws. Even she has not given any notice to her husband that
she is ready to live with her husband and is performing matrimonial obligations,
therefore, statement of the respondent/wife Yojna Dubey cannot be relied upon.
From perusal of the statement of respondent Yojna and applicant Anand before
the trial Court, it reveals that respondent/wife is living separately from her
husband without any sufficient and justified cause. Even she disobeyed the
decree for restitution of conjugal rights passed against her, therefore, under
Section 125 of Cr.P.C. respondent is not entitled for any maintenance.
12. The trial Court has not considered all these evidence available on
record in right perspective, therefore, impugned order passed by the Court
below deserves to be set aside.
13. Accordingly, the instant revision petition under Section 19(4) of
Family Court Act is hereby allowed and the impugned order dated 02.05.2022
passed by the Court below is hereby set aside.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Anushree
