Rakesh Gehlot vs State Of Rajasthan
2022 Latest Caselaw 11278 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 6048/2021

Rakesh Gehlot S/o Govind Singh Gehlot, Aged About 30 Years, B/c Mali, R/o House No. 590, Defense Colony, Chopasani Road, Jodhpur

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Smt. Sarita W/o Rakesh Gehlot, B/c Mali, R/o Mayali Mandavata, Police Station Mandore, Jodhpur.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Nishant Bora
For Respondent(s)         :     Mr. Abhishek Purohit, Addl.G.A.
                                Mr. C.P. Soni & Mr. Sarvan Saini

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 07/09/2022 Pronounced on 09/09/2022

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has

been preferred claiming the following reliefs:

"It is, therefore most respectfully prayed that the application filed by the petitioner u/s.482 Cr.P.C. may be allowed and:

The order dated 22.10.2021 passed by the learned Family Court No.2, Jodhpur Metropolitan, Jodhpur in Criminal Case No.69/2019 may kindly be quashed and set aside and the application filed by the petitioner under Section 91 Cr.P.C. may kindly be allowed as prayed for."

2. Brief facts of this case, as placed before this Court by

learned counsel for the petitioner, are that a complaint was filed

by the complainant/respondent No.2 (wife) before the learned

(2 of 5) [CRLMP-6048/2021]

Court below, under Section 125 Cr.P.C. against her husband

(petitioner herein), her father-in-law and her mother-in-law,

alleging therein that immediately after she got married to the

present petitioner, on 31.01.2013 at Jodhpur, the petitioner-

husband and her in-laws began harassing her, while making

excessive demands of dowry. And that, she was subsequently

thrown out of her matrimonial home, while her in-laws kept all her

Stridhan with them. Out of the wedlock, the parties have a

daughter.

2.1 Learned counsel further submitted that during pendency of

the aforementioned complaint, the petitioner moved a Misc.

Petition being S.B. Criminal Misc. Petition No.2195/2019 for

quashing of the entire proceedings, whereupon, this Hon'ble

Court, vide order dated 13.05.2019, had stayed the proceedings,

only qua the other family members of the petitioner-husband.

2.2 Learned counsel also submitted that while the proceedings

were going on before the learned court below, the petitioner

moved an application under Section 91 Cr.P.C. for calling certain

documents, and pay slips in relation to the employment of the

complainant/respondent as a teacher in a School, namely,

Emmanuel Mission School, Nayapura, while stating therein that

the complainant-wife is working as a teacher in the said school,

which is evident from her signature (as teacher) on the copy of a

mark-sheet issued to a student of that school. Thus, as per

learned counsel, the complainant-wife is not entitled to any

interim or final maintenance as she is earning sufficient income to

maintain herself.

2.3 Learned counsel further submitted that the respondent no. 2,

wife, has concealed the said information, in the affidavits,

(3 of 5) [CRLMP-6048/2021]

regarding disclosure of income, filed in compliance of the

judgment of the Hon'ble Apex Court in Rajnesh Vs. Neha

(2021) 2 SCC 324.

2.4 Learned counsel however, submitted that the learned Court

below, without duly appreciating the object and purpose of Section

91 Cr.P.C. has erred in rejecting the application of the petitioner

vide the impugned order dated 22.10.2021, without taking into

consideration the overall facts and circumstances of the case and

the evidence placed on record before it; thus, the impugned order

deserves to be quashed and set aside.

3. On the other hand, learned Public Prosecutor as well as

learned counsel for the complainant opposed the aforesaid

submissions made on behalf of the petitioner.

3.1 It was jointly submitted that on an earlier occasion also, the

same application was preferred by the present petitioner before

the learned court below, which was rejected. However, the present

petitioner preferred a subsequent application under Section 91

Cr.P.C., on the same facts and grounds, which is nothing but a

blatant attempt to deprive the complainant-wife of her right to

interim maintenance, by seeking to prolong the adjudication of the

case before the learned Court below. And thus, the learned Court

below has rightly passed the impugned order, after taking into due

consideration, the conduct of the petitioner-husband, who sought

to deprive the complainant-wife of her lawful right to interim

maintenance.

4. Heard learned counsel for the parties as well as perused the

record of the case.

5. This Court observes that the main ground raised on behalf of

the present petitioner, is that the learned Family Court No.3,

(4 of 5) [CRLMP-6048/2021]

Jodhpur vide the impugned order, has gravely erred in rejecting

the Section 91 Cr.P.C. application so preferred by the petitioner,

owing to the fact that the income of the wife was not taken into

due consideration, and that by way of filing the said application,

the petitioner sought to place on record certain documents to

prove that there was a concealment made by the wife, in filing the

affidavits, regarding the disclosure of her income, filed in

accordance with the mandate of the Hon'ble Apex Court in the

judgment rendered in the case of Rajnesh Vs. Neha (2021) 2

SCC 324.

6. This Court further observes that the learned Court below, in

passing the impugned order, rejecting the aforementioned

application of the petitioner, has categorically dealt with the said

contention raised by the petitioner-husband, and held that the

wife had returned to the concerned school, only for a period of

about 5 days, that too without pay, owing to the fact that another

teacher was on casual leave, and the concerned school required

assistance in conducting students' examinations. It is in that vein,

that the respondent no. 2, the wife's signature was found on the

copy of the mark-sheet of a student, one Madhav Gehlot. And

that, on a perusal of the record, the learned Court below did not

find any discrepancy in the disclosure of income made by the wife,

in the affidavit filed in compliance of Rajnesh (supra) wherein

she asserted that after April 2018, she was not earning any

income.

7. This Court further observes that the present petitioner made

certain averments to the effect that there were some deposits in

the bank account of the wife, which pointed towards her earning

an income, however, the learned Court below rightly dismissed

(5 of 5) [CRLMP-6048/2021]

such claims of the petitioner, while observing that each amount,

as pointed out by the present petitioner, were for varying sums of

money, and could not be attributed to her (wife's) earning a stable

monthly income.

8. Moreover, since the petitioner on an earlier occasion also

filed an application under Section 91 Cr.P.C., which stood rejected

by the learned court below, therefore, the said rejection order

passed by a competent court will operate as res judicata against

filing of the subsequent application on the same set of facts and

grounds in the pending litigation between the same parties.

However, the said application filed subsequently, was rejected by

the learned court below vide the impugned order, and rightly so.

9. This Court therefore, finds that the learned Court below has

rightly taken into due consideration the overall facts and

circumstances of the case at hand, and passed the impugned

order after a thorough perusal of the record, and while dealing

with each of the contentions made on behalf of the petitioner

husband, before it.

10. Thus, in light of the aforesaid observations, this Court does

not find any legal infirmity in the impugned order passed by the

learned court below.

11. Resultantly, the present petition fails and is hereby

dismissed. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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