Smt. Arti Dubey W/O Shri ... vs Shahastranshu Dubey
2023 Latest Caselaw 9456 MP

                                1

    IN THE HIGH COURT OF MADHYA PRADESH
                AT J A B A L P U R
                         BEFORE
         HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                ON THE 23rd OF JUNE, 2023

              CRIMINAL REVISION No. 1455 of 2019
BETWEEN:-
      1. SMT.  ARTI   DUBEY   W/O    SHRI
      SHAHASTRANSHU DUBEY D/O SHRI BAL
      MUKUND MISHRA, AGED ABOUT 30 YEARS,

      2.  DHRUV KUMAR DUBEY S/O SHRI
      SHAHASRANSHU DUBEY, AGED ABOUT 5
      YEARS

      3.  SHUBH KUMAR DUBEY S/O SHRI
      SHAHASRANSHU DUBEY, AGED ABOUT 9
      YEARS,

      ALL R/O JEEVAN JYOTI COLONY, SATNA,
      P.S KOLGAVAN, TAH. RAGHURAJ NAGAR
      DISTRICT SATNA (M.P.)


                                                .....PETITIONER
(BY SHRI RAKESH DWIVEDI - ADVOCATE)

AND

SHAHASTRANSHU DUBEY, S/O SHRI S. K. DUBEY,
AGED ABOUT 34 YEARS, R/O VILLAGE BADRAO
IN FORNT OF GOVT. PRIMARY SCHOOL,
DISTRICT REWA (M.P.)
                                               .....RESPONDENT
 (BY SHRI VIKAS MISHRA - ADVOCATE & ASSOCIATES - ABSENT)

      Reserved on     : 20.06.2023
      Pronounced on   : 23.06.2023
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      This revision coming on for admission this day, the court passed the
following:
                                 ORDER

1. This revision petition has been preferred by the applicants who are the wife and children of the respondent challenging the order dated 26.02.2019 passed by the Principal Judge, Family Court Satna, whereby the application filed under Section 125 of Cr.P.C. was dismissed in relation to applicant no.1 and maintenance amount of Rs.3,000/- each was granted in favour of applicants no.2 & 3.

2. Admittedly, applicant no.1 was married to the respondent on 07.02.2011 and applicants no.2 & 3 were born of their wedlock. It is also an admitted fact that respondent faced trial under Section 498-A of IPC in which order of acquittal has been passed. It is also admittedly proved that the divorce petition filed by respondent against applicant no.1 has been dismissed on merits.

3. In the application preferred under Section 125 of Cr.P.C. before the Family Court Satna applicants pleaded that despite receiving sufficient dowry at the time of marriage, respondent alongwith his parents was harassing the applicant no.1 for further cash amount of R.3 Lakh in dowry. In the scenario of continuous physical and mental torture, father of applicant no.1 took her and also the non-applicant no.2 alongwith him. The case under Section 498-A of IPC and another case for maintenance under Section 125 of Cr.P.C. were filed against the respondent. On the basis of compromise arrived at between the parties, both of these cases were settled and applicants no.1 & 2 came back to the respondent. Again applicant No.1 was started to be treated with cruelty and she alongwith other two

applicants was thrown out of matrimonial house on 22.04.2016. The respondent, who runs a Patanjali shop and owns a bungalow worth crores of rupees, has been neglecting applicants since then. It was prayed that all the applicants be awarded maintenance of Rs.40,000/- per month collectively in the light of the income and status of the respondent.

4. Application was opposed by the respondent before the Family Court. The grounds raised by him are that it was applicant No.1, who was committing cruelty. She was insisting upon partition of property and separate living. She used to occasionally threaten the respondent and his family members and was in the regular habit of abusing them. Consequently, the whole of the family of respondent was suffering mentally. The case of dowry harassment was found to be baseless hence, order of acquittal was passed. The respondent is paying Rs.4,000/- per month to the applicants on the basis of compromise arrived at between the parties in the divorce case. Applicant no.1 is earning sufficient income and she is not entitled to any maintenance. Prayer was accordingly made for rejection of application.

5. By the impugned order learned Judge of Family Court partly allowed the application filed under Section 125 of Cr.P.C. with a finding which have already been discussed in para 1 of this order.

6. The grounds raised in this revision are that there is no source of livelihood available to applicant no.1, who has been forced by respondent to live separately since 22.04.2016. No legal ground was proved by the respondent to disentitle the applicant from claiming maintenance. The quantum of income of non-applicant is on higher side and he is fully capable to maintain the applicants. Registration of a case for dowry harassment itself is sufficient ground for the wife to live separately from the

husband, but the Court below failed to appreciate this fact. Accordingly, it is prayed in this revision that maintenance amount be awarded in favour of applicant no.1 and maintenance amount awarded by the Family Court in favour of applicants no.2 & 3 be enhanced.

7. Respondent failed to appear at the stage of final argument hence, the petition was not challenged before this Court at the stage of final hearing.

8. Heard arguments of learned counsel for the applicants and perused the record of Family Court.

9. To prove the grounds alleged in the application filed under Section 125 of Cr.P.C. applicant no.1 and her father Shri Balmukund Mishra were examined as witness. To give support to his reply, respondent presented himself as a witness and no other evidence was produced from his side. Ex.P-2 to P-4 are the statements given by respondent and his parents in the matrimonial case under Section 13 of Hindu Marriage Act and Ex.P-1 is the Khasra entry made in the name of brother of respondent. These four documents were filed on behalf applicants before the Family Court.

10. It has been claimed by the respondent that he and his family members were falsely implicated in a dowry harassment case in which they stand acquitted. It is important that the said order of acquittal has not been placed on record by either of the parties, but the finding of acquittal has not been challenged even by the applicants. Per contra, they have taken the stand that this finding of acquittal was based on a compromise arrived at between the parties, but neither the compromise application nor the order of acquittal having the contents of compromise were produced before the Family Court. Admittedly, the statements of witnesses had already been recorded in that dowry harassment case when the compromise was arrived at. Thus, it is evident that the finding of acquittal passed in dowry

harassment case was not at all affected by the fact of compromise and it was edged on the merits of the case. Thus, it can be easily inferred that a case of dowry harassment was filed by applicant no.1, which was found to be without any merit. This fact itself indicates that cruelty was being committed by the applicant.

11. Undoubtedly, parties live together after compromise arrived at between them, but in 2016 again the dispute aggravated and respondent filed a divorce petition. It has been admitted by applicant no.1 in para 21 of her statement that she received a notice of divorce in her matrimonial house. Though she claims that she was thrown out of house by respondent, but had there been any truth in this fact, she would have had received the notice of divorce in her parental house. It is uncommon in the natural course of events that a husband sending divorce notice to a wife living together with him would have taken the measures of throwing her out of house thereafter. Had there been any intention on his part to throw the wife out of matrimonial house, he would have taken this measure much before giving the notice of divorce so as to avoid the hell been broke out.

12. The father of applicant no.1 has claimed that on 11.02.2016 respondent physically assaulted applicant no.1, but there is no medical evidence to support this fact. Even no FIR was lodged in relation to this episode. Thus, the ground alleged regarding separate living in 2016 has not been cogently proved by the applicants.

13. Learned Judge of Family Court has also relevantly referred to the evidence in which the father of applicant no.1 has admitted that to ensure peaceful living, the father of respondent had arranged a separate residence for the parties. This gesture shows that the factum of cruelty, as alleged by the wife, does not stand the test of truth.

14. In the light of this analysis, the finding of learned Family Court regarding rejection of maintenance to applicant no.1 is factually and legally correct because she could not prove sufficient and valid reasons for separate living. Thus, the prayer made in the revision for awarding a maintenance to applicant no.1 is rejected.

15. It is prayed that maintenance amount granted in favour of applicants no.2 & 3 should be enhanced, but the impugned order refers to every piece of evidence that has been produced regarding the financial status of respondent. It has been rightly observed therein that applicants have failed to prove any source of income to the respondent. It was claimed that respondent runs a Patanjali shop, but there is no piece of evidence to support this contention. Despite finding the financial status of respondent not to be very sound, the learned Judge of Family Court has awarded Rs.3,000/- each to applicants no.2 & 3 and this Court finds no reason to warrant interference in that finding. Accordingly, prayer made by applicants No.2 & 3 for enhancement of maintenance is also rejected.

16. Accordingly, this revision petition is dismissed.

A copy of this judgment alongwith the record be sent back to the Court below.

(ANURADHA SHUKLA) JUDGE rv

Digitally signed by REENA HIMANSHU SHARMA Date: 2023.06.27 19:07:33 +05'30'