,y IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR(C.G.) CRJV!,P. No._53-ll of 2011 S'in<|ls B®n \: PETITIONER/ Applicant t.'.R. No.......>..t(.J."~' Ftesanted ^m ^.^A^ BBie<.......u.^.'"'/---- • (C.G.) Smt. Seema Chandra, W/o Shyam Sunder Chandra, D/o Rameshv/ar Chandra, aged about 27 years, R/o Village-Khajurani, P.S. &-Tahsil- Jaijaipur, District-Janjgir-Champa (? VERSUS RESPONDENT/ Non-applicant Shri Shyam Sunder, S/o Bharat Lal Chandra, aged about 30 years, R/o Village-Bhathora, P.S. Malkharouda, Tahsil-Malkharouda, District-Janjgir- Champa (C.G.) PETITION UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE h^ ^i HIGH COURT OF CHHAmSGARH : BILASPUR S.B^: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. PETITIONER RESPONDENT Cr.M.P.No.574/2011 Smt. Seema Chandra Versus Shri Shyam Sunder tPetitjo!LU/!S482 ofthe Cr.P.Cl Apoearance: Shri Goutam Khetrapal, counsel for the petitioner. Shri K.A. Ansari, Senior Advocate with Shri Devesh Kela, counsel for the respondent. ORAL- ORDER (Passedon 7.12.2011) Heard on admission. 2. This petition under Section 482 of Cr.P.C. has been filed by the petitioner aggrieved by order dated 30th November, 2007 passed by the revisional Court, whereby the revision Bled by respondent was allowed and the order dated 8.5.2007 passed by fhe Magistrate, granting maintenance to the petitioner, was set aside. 3. The petitioner moved an application for grant of maintenance under Section 125 of the Cr.P.C. on the allegation that she was subjected to cruelty and she was not being provided proper food. Specific allegation was also leveled that an attempt was L k ^—^ w. 'SSa -2- r^..' made to administer insecticide and thereafter the petitioner was shunted out of the mataimonial house. In reply, the allegations were denied and it was stated that the petifioner is residing separately without any sufficient reason and is, therefore, not entitled to any maintenance. The learned Magistrate, after examining the pleadings and evidence of the parties, came to the conclusion that the petitioner was subjected to cruelty and therefore she has siifficient reason for residing separately. 4. On revision being preferred by fhe respondent, the revisional Court interfered with the order. It was held that the evidence on record shows that the only operative reason for not residing with the husband is that the petitioner does not want to live along with other members of the family and that would not provide sufficient reason for living separately and, therefore, the petitioner is not entitled to maintenance. 5. Leamed counsel for the petitioner submitted that the learned Magistrate, after considering the pleading and evidence available on record, recorded Ending of fact based on the evidence of the petitioner that she was subjected to cruelty in the name of demand of dowry, but the revisional Court re- assessed the evidence available on record, exceeding its jurisdiction and arrived at its own finding of fact that the only operative reason for residing separately was that the petitioner does not want to live along with ofher members of the famUy. J- •sssaga'ga, '-°•¥''%?s: 8 -'ss-^s^ ^ '^^- -3- Leamed counsel for the petitioner submits that the proceedings for grant of maintenance are summary in nature and the evidence of the petitioner is sufEicient to draw inference that she is residing separately because of cruelty, which has also been very specifically stated by her in her testimony. Therefore, the leamed revisional Court was not justified in entering into re-assessment of evidence and record a different finding of fact in substitution of the finding recorded by the Magistrate, rejecting the application of the petitioner for grant of maintenance. M, 6. On the other hand, leamed counsel for the respondent subraitted that instant petition is not niaintainable. It is submitted that in the present case, the petitioner ought to prefer a revision instead of filing petition under Section 482 of the Cr.P.C. and, in fact, such a revision was preferred, but the same was dismissed as withdrawn. Therefore, this petition under Section 482 of the Cr.P.C. is not maintainable. In support of his submission learned counsel for the respondent relied upon the decision in the cases of Central Bureau of Investigation Vs. Shri Shankar Shrivastava, IAS and another1, Ashok Singhal Vs. State of M.P.2, Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors.3, Rajinder Prasad Vs. Bashir & Ors.4 and Prasanta Kumar Dey .1: / / ' AIR 2006 SC 2872 : (2006) 7 SCC 188 / 2 2005 CR.L.J. 2324 (All.) / 3AIR 1983 SC 67 : (1983) 1 SCC 1 4 AIR 2001 SC 3524 : (2001) 8 SCC 522 ~:~3s^3^iat^!a^— -4- Vs. State of W.B. and anothers. It is further submitted that the learned Magistrate had mechanicatly accepted the version of the petitioner, ignoring relevant evidence available on record, including her own admission that she wanted to live with the husband, but without other members of the family and she is still ready and wilUng to reside with her husband provided other members of the family do not reside with them, which clearly shows that there is no sufficient reason for residing separately. 7. The petitioner had initially filed a petition under Section 482 of the Cr.P.C. registered as Cr.M.P. No.08/2008, which, however, was dismissed for want of prosecution vide order dated 30.4.2010. The petitioner filed application for restoration, which was registered as Cr.M.P. No. 186/2011. The said petition was, however, dismissed as withdrawn with Uberty to file fresh petition. The petitioner, thereafter, filed a criminal revision which was registered as Criminal Revision No.400/11. That revision was also dismissed as withdrawn with liberty to file appropriate petition vide order dated 25.7.2011. The petitioner has again filed this petition under Section 482 of the Cr.P.C.. It is found that the petitioner had initially fUed a petition under Section 482 of the Cr.P.C. aggrieved by order passed by the revisional Court and it is not a case where the -, petitioner is chaUenging the order passed by the revisional Coiu-t for the first time before this Court in the year 2011. .4- AIR 2003 SC 4412 -5- Moreover, once the petitioner has been allowed to withdraw his revision with liberty to file appropriate petition, I am not inclined to dismiss this petition under Section 482 of the Cr.P.C. only on the ground that the petitioner had an altemative remedy of filing a criminal revision. The inherent powers under Section 482 of the Cr.P.C. could be exercised by this Court ex debito justitiae to prevent the abuse of the process of law or otherwise to secure the ends of justice. Therefore, in the circumstances of the present case where revision filed by the petitioner was dismissed as withdrawn with liberty to ffle appropriate petition, I am not inclined to dismiss the petition on the preliminary objection raised by learned counsel for the respondent. 8. A perusal of the order passed by the Magistrate would show that the learned Magistrate, after considering the evidence available on record, particularly the testimony of the petitioner, recorded a finding of fact that the petitioner was subjected tQ cruelty and because of this reason, the petitioner is not residing with the husband and other members of the family. It is not the case of respondent, nor so held by the leamed revisional Court that such fuiding is without any evidence on record. The leamed revisional Court, however, re-appreciated the evidence to record its own finding by taking into consideration the statement of the petitioner in her cross- 7 examination that she is prepared to resolve the disputes wifh her husband provided he resides separately from other t~s .4- r members of the family. This statement of the petitioner is required to be appreciated in the light of the totality of fhe evidence and not in isolation. The clear statement of the petitioner in her testimony that she was subjected to cruelty and that an attempt was made to administer insecticide, because of which, she was not prepared to reside along with the husband and in-laws, itself constitutes siifficient reason to reside separately. An attempt to resolve the disputes on the part of the petitioner and statement that she is willing to resolve the dispute and live separately with her husband by itself cannot be said to be the only operative reason for residing separately, particularly when there was evidence on record regarding cruelty meted out to her. The learned revisional Court exceeded its jurisdiction in considering a part of evidence in isolation to record a finding of fact contrary to the finding recorded by the Magistrate and in that process, entering into re-assessment of fhe evidence. 9. The proceedings under Section 125 of the Cr.P.C. are summery in nature. The standard and degree of proof required to make out a case for grant of maintenance is not as high as in a criminal case or in other matrimonial civil proceedings. The object of the provision is to save the wife from vagrancy. In the opinion of this Court, the evidence collected by the Magistrate during trial, wherein the petitioner stated that she was subjected to cruelty, constitutes sufficient reason for her to reside separately and also for grant of maintenance. The order .4- t ^'e-£°!^. '~vh s? 1 '•'^. ^ // ff '^X "«E>^'^? -7- passed by the revisional Court setting aside award of maintenance to the petitioner has resulted in injustice to the petitioner and interference of this Coi.u-t has become imperative. 10. Accordingly, order dated 30U1 November, 2007 passed by the revisional Coiu-t in Criminal Revision No.75/2007 is set aside and the order passed by the Magistrate on 8.5.2007 is restored. The respondent shall be liable to pay maintenance in accordance with the orders passed by the Magistrate. However, considering that vide order dated 8.5.2007 passed by the Magisfa-ate, maintenance is payable from the date of order dated 8.5.2007, the learned Magistrate may allow fhe respondent to pay the arrears of maintenance between the period from 8.5.2007 to 31.12.2011 in six installments, payable up to 30.12.2012. That would be in addition to the liabilily to pay monthly maintenance as per order dated 8.5.2007 passed by the Magistrate. 11. The petition is accordingly allowed. 12. No orders as to cost. Sd/- Manindra Mohan Shrivastava Judge Praveen