RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.366 OF 2001 (Old No.06 of 1997) Smt. Savitri Devi W/o Mansa Ram & two others … Revisionists Versus Mansa Ram S/o Mahesanand and another … Respondents Sri U.P.S. Negi, learned counsel for the revisionists Sri Lokendra Dobhal, learned counsel for the respondent No.1 Dated: June 24, 2008 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 21.08.1996 passed by Judge, Family Court, Pauri Garhwal in Criminal Case No.09 of 1996, whereby the learned Family Judge has rejected the application moved by revisionist u/s 125 of Cr.P.C. for maintenance allowance. 2. I have heard Sri U.P.S. Negi, learned counsel for the revisionists and Sri Lokendra Dobhal, learned counsel for Respondent No.1 and perused the entire material available on record. 3. In brief, the facts of the case are that revisionist No.1-Smt. Savitri Devi Biswas moved an application u/s 125 of Cr.P.C. before Judicial Magistrate, Pauri Garhwal on 28.8.1995 stating therein that she is the wife of respondent No.1-Mansa Ram and she was married with him before 10 years as per Hindu customs and out of the said wedlock, two sons namely Deepak aged 7 years and Pradeep aged 5 years were born out. It was stated that after some time of marriage, 2 for some time, the behaviour of respondent no.1 and his family members towards the revisionist no.1 was normal for some time, but after some time they started committing cruelty upon her by committing Marpit and they also started harassing her physically and mentally. It was also stated that they also started pressurizing her to get dowry from her parents. It was also stated that since the financial condition of parents of revisionist no.1 was not good, hence she could not satisfy the demand of dowry of her in-laws. It was further stated that before six months of filing of application, respondent no.1 and his family members ousted the revisionist no.1 from her matrimonial house and also threatened her about her life by saying her to come back only with a golden locket and other articles otherwise not to come back. Hence, from that day, she is living in her parental house. It was also stated that on 21.7.1995 at 11:00 A.M., respondent no.1 and his family members came at the parental house of revisionist no.1. At that time, she was alone at home. There she was beaten by respondent no.1 and his family members by fists and kicks and on alarm raised by revisionist no.1, her mother Rampyari Devi and Village Pradhan Madan Singh could manage to save her. It was also stated that since when she was ousted from her matrimonial house, she was not given any money or clothes etc. by the respondent no.1 and he also committed Marpit with her so that she might not come back home. Further, she was an illiterate lady and was having no source of income and as such she is unable to maintain herself and her children. It was further stated that the respondent no.1 is posted in Indian Military Service and was getting Rs.4,500/- per month as salary and besides this, he was having sufficient agricultural land from which he earns Rs.10,000/- per month. As such, an amount of Rs.1,000/- for herself and Rs.600/- each for her two children, in total Rs.2,200/- was sought as maintenance from the respondent no.1. 3 4. The respondent no.1 also filed his objection to the application moved by the revisionist no.1 and denied the averments made in the application moved u/s 125 Cr.P.C. and he stated that revisionist no.1 is an hale and hearty woman and she also knew the work of knitting and sewing and was also doing business of selling milk, out of which she earns Rs.1,500/- per month. It was also stated that she also used to earn Rs.12,000/- per month from agricultural work. It was further stated on behalf of respondent no.1 that he had not ousted her rather she is a woman of vagabond nature and she was not desirous to stay at one place in her matrimonial house. His posting was at border places in Indian Army, hence he could not keep her with him and in his absence, she used to wander outside the village for many days. With all the above-said averments, he prayed for dismissal of the application moved by revisionist no.1. 5. The learned Judge, Family Court, Pauri Garhwal vide his judgment and order dated 21.8.1996 after considering all the facts and circumstances of the case, rejected the application moved by revisionist no.1 moved u/s 125 Cr.P.C. Feeling aggrieved by the said judgment and order dated 21.8.1996, the present revision has been preferred. 6. Revisionist No.1-Smt. Savitri Devi in support of her case got herself examined as P.W.1 in which she stated that she was married with Mansa Ram in the month of November, 1985. Out of the said wedlock, two sons namely Deepak aged 7 years and Pradeep aged 5 years were born out. It was also stated that after 4-5 years of marriage, respondent no.1 started committing cruelty upon her by committing Marpit and he started pressurizing her to get a golden locket and golden earrings. In the month of February, 1995, her mother in law, brother in law and sister in law ousted her from her matrimonial house for demand of dowry. After that she had gone to her parental house along with her children. At that 4 time, she also did not get medically examined because she did not want to raise the issue further. On 21.7.1995, respondent no.1 along with his sister aged about 39-40 years & brother aged about 31-32 years, came at the parental house of revisionist no.1. At that time, she was alone at home and her mother had gone at field. There she was beaten by them brutally by fists and kicks and on alarm raised by her, her mother and Village Pradhan Madan Singh Bisht had come and saved her life. After that she went to the police station and lodged the report. Thereafter, she also got medically examined. The accused persons were arrested by Kanoongo and the case is also going on against them. It is also stated that the respondent no.1 is not giving anything for maintenance of herself and her children. She also did not have any work to do. She also stated that if the respondent no.1 would give a promise in writing that he would not commit Marpit with her, then she could live in her matrimonial house. She also sought Rs.2,200/- per month as maintenance for maintenance of herself and her children. She also stated that respondent no.1 is posted in Indian Military Service and was getting Rs.4,500/- per month as salary. 7. P.W.2 is Madan Singh, Village Pradhan, who has stated that the incident is of year 1995 and at that time, he was at home. Savitri Devi was also at her home. On hearing noise, he reached at the house of Savitri Devi where he saw that Mansa Ram along with his brother and sister was beating Savitri Devi with fists and kicks. Besides him, Manuwar Singh of Bargaon Malla was also there. He catch hold all the three persons and given them in the Patwari Chowki. He had not gone with Savitri Devi for her medical check up and he also did not know with whom Savitri Devi had gone for medical check up. In the Chowki, Patwari had left all the three persons. The report of the incident was given by the victim herself. He also stated that he had seen the respondent no.1 and his family members while abusing. 5 8. P.W.3 is Manwar Singh who has stated that incident is of 21.7.1995 and the time was about 10:00 A.M. At that time, he was in her sister’s house at village Kawali. He also stated that the way going towards his house goes near the house of Savitri Devi. He saw the crowd in the house of Savitri Devi and after that he reached there. He also stated that he saw Mansaram while doing Marpit and he also used abusive language. He also tried to convince Mansa Ram and after that he moved from there. 9. After that the statements of the opposite parties were recorded. Respondent No.1-Mansa Ram got himself examined as OPW1 and stated that Savitri Devi is his wedded wife and Deepak and Pradeep are his sons. He also stated that his wife is living along with his children at her parental house at village Kulli. He also stated that neither he nor any member of his family had beaten her. He also stated that he is retired from Army and was getting Rs.1,000/- as pension and his old mother is dependent upon him. In the family, he is having a brother and his family and the family is a joint family. He also stated that Savitri Devi is a lady of vagabond nature and she used to wander here and there. He also stated that on 10.3.1995, she stayed with his elder sister’s husband namely Om Prakash Badoni in a hotel at Karanprayag. On 18.3.1995, she stayed with his elder sister’s husband at Aggarwal Dharamshala. On 5.3.1995, both of them stayed in a hotel at Srinagar and on 6.3.1995, both of them had come to his house. He also stated that on 19.3.1995, Savitri Devi sold the golden Gulband which was purchased by him and she sold the said Gulband through Sri Badoni at Jit Singh Bharat Singh Jwellers, Rishikesh for Rs.6,000/-. He also stated that the said Gulband was 21 grams of weight and was valued at Rs.2,000/-. He also stated that he is confident that illegal relation has been created between both of them. He also stated that his sister is also bothered with the said illegal relations. On 21.3.1995, he had gone to call Savitri Devi. He 6 also scolded her for selling the jewellery but he did not commit any Marpit with her. 10. OPW2 is Smt. Jagdamba Devi who is the sister of OPW1 Mansa Ram. She has stated that she is residing at Rishikesh and Mansa Ram is her brother and Savitri Devi is her sister in law. She has stated that on 21.7.1995, she had not gone at the parental house of Savitri Devi along with her brother for committing Marpit and on that day, she was in her parental house. She also stated that she saw her husband Om Prakash while fornicating with Savitri Devi. She objected for the same and due to this some disturbance also created. She found the receipt for selling the Gulband at Jeet Jewelers in the bag of Savitri Devi and she gave the said receipt to her brother in the month of July. She also stated that she did not come at her parental house from March to July. On 18th of July, she had come to her parental house for taking her brother’s son Deepak Kumar because he was studying in Rishikesh. In the school holidays, Savitri had brought her because she wandered with her husband from 27th February, 1995 up to 1.4.1995 and her husband also remained absent from his duty. When she came in the month of April, then she scolded her due to which she had gone after taking her son. She also stated that she had not gone in the month of July along with her brother for beating Savitri Devi. 11. OP3 is Smt. Parmeshwari, mother of respondent no.1, who has stated that in February, 1995, she along with her younger son and younger daughter in law had not ousted Savitri Devi from house after beating her. On 27.2.1995, she had gone to Rishikesh on her own will. She also stated that there her daughter is also residing and her grandson was studying there. The paternal aunt (Fufi) of her younger daughter in law had called her daughter in law due to which she sent her. At that time, some altercation took place. She also stated that she had realized her fault with folded hands 7 and asked her that she would not sent Savitri Devi, even then she had gone. She also stated that she had sent her younger son along with a boy from the village to enquire the whereabouts of Savitri Devi. They had informed that Savitri Devi is in Rishikesh. Her son in law Om Prakash told her that he would bring her daughter in law back to home by 6th of the month. She also stated that her daughter had sent both of them at 4:00 A.M. on 5th of the said month. She also stated that Savitri Devi had come home on 6.3.1995. Her son in law Om Prakash Badoni told her that on 5th of the said month, they stayed in a hotel. She also stated that on 9th, she went with Om Prakash Badoni to Nainital and there she committed marpit with her son (son of Parmeshwari). 12. OPW4 is Om Prakash Badoni, who has stated that he is the real elder’s sister husband (JIJA) of Mansaram Joshi. His house is in Rishikesh and the elder son of Mansaram namely Deepak is residing with him and is studying at Rishikesh. On 27.2.1995, Savitri Devi had come at his house Rishikesh with an unknown person. The child (Deepak) had come to his office and informed him that his mother has come. For 5-7 she stayed at his house. Then he stated that on 5th March, 1995, after persuading her, she brought her to her matrimonial house at Jawada and he wanted to leave her there but she did not agree to it and asked him to take her at Nainital where her husband Mansaram was working in Army. Thereafter, he took her to Mansaram. Before reaching there, he stayed at Karanprayag. On the next day, they went to Nainital and given her in the Supurdgi of her husband. From there, he along with Mansaram reached at Javda. She told him that she did not want to stay there and wanted to go Rishikesh. Thereafter, she had gone Rishikesh along with him. Mansaram had also gone for his duty. He also stated that she (Savitri Devi) stayed in his house for 5-7 days due to which some dispute also arose in his house. Thereafter, when he came back to his 8 home, then he came to know that she had gone to her matrimonial house after taking her son Deepak with her. Thereafter, he did not know what had happened. He also stated that when Savitri Devi had come to him second time, then she had asked him to arrange a room for her on rent at Rishikesh. For this reason, she sold her golden Gulband for Rs.8,000/- to a jeweler and he had also gone with her. 13. On the basis of the above-said evidence, Sri U.P.S. Negi, learned counsel for the revisionist submitted that the court below has erred in law in rejecting the application moved by the revisionist u/s 125 Cr.P.C. 14. As per the evidence discussed above, it is proved that Savitri Devi is the legally wedded wife of respondent No.1-Mansa Ram and she was married with him before 10 years as per Hindu customs and out of the said wedlock, two sons namely Deepak aged 7 years and Pradeep aged 5 years were also born out. After some time of marriage, the respondent no.1 and his family members started committing cruelty upon the revisionist no.1 by committing Marpit and they also started harassing her physically and mentally due to demand of dowry. When the revisionist no.1 and his parents were unable to meet out the demand of dowry raised by respondent no.1 and his family members, they ousted the revisionist no.1 from her matrimonial house. From that day, she is living in her parental house. The cruelty on the part of respondent no.1 and his family members had even not stopped here. Even on 21.7.1995 at 11:00 A.M., respondent no.1 and his family members came at the parental house of revisionist no.1 and at that time, she was alone at home. There she was beaten by respondent no.1 and his family members brutally by fists and kicks and on alarm raised by her, her mother Rampyari Devi and Village Pradhan Madan Singh had come and they could save her life. It is also proved that since when she was ousted from her matrimonial house, 9 she was not given any money or clothes etc. by the respondent no.1 and the said Marpit was committed so that she might not come back home. 15. Besides this, Savitri Devi is an illiterate lady and having no source of income and as such she is unable to maintain herself. On the other hand, P.W.1 Savitri Devi has clearly deposed in her evidence that respondent no.1 is posted in Indian Military Service and was getting Rs.4,500/- per month. In view of the aforesaid factual position of the case, it is proved that respondent no.1 is having sufficient means, however he is intentionally neglecting and deliberately refusing to maintain his legally wedded wife. Therefore, after considering the above said position, the Court is of the view that the revisionist no.1 is entitled to get maintenance for herself from Respondent No.1 and the learned court below was not justified in refusing the maintenance allowance to revisionist No.1. It is pertinent to mention here that when the application for maintenance was moved by revisionist no.1 i.e. on 28.8.1995, at that time, her two sons, one namely Deepak was 7 years of age and another son Pradeep was 5 years of age. After moving of the said application, a period of 13 years has expired. As such, both of the sons have attained majority, therefore, the revisionist no.1 is not entitled to get maintenance on behalf of her children because they are major now. So far as the issue with regard to amount of maintenance which is to be given to revisionist no.1 is concerned, after considering the entire facts and circumstances of the case and in view of the fact that the revisionist no.1 is an illiterate lady and is unable to maintain herself and also that she is having no source of income, the Court is of the view that the interests of justice would be met if an amount of Rs.1,000/- per month would be awarded as maintenance allowance against respondent no.1. 10 16. Sri Lokendra Dobhal, learned counsel for respondent no.1 argued that revisionist no.1 is a woman of loose character and she was having illicit relationship with Om Prakash Badoni, who is the elder sister’s husband of Mansaram-Respondent No.1. This argument advanced by learned counsel for the respondent No.1 is without any evidence available on record. There is no evidence available on record which may show that the revisionist no.1 was having any illicit relationship with Om Prakash Badoni. This is the false and concocted story built up by the respondent no.1 in order to save himself for paying the amount of maintenance. Hence, the argument advanced by learned counsel for respondent no.1 is without force and cannot be accepted. 17. For the reasons as recorded above, the revision deserves to be allowed. Hence, the revision preferred by revisionist no.1-Savitri Devi is allowed and judgment and order dated 21.8.1996 passed by Judge, Family Court, Pauri Garhwal is hereby set aside. The respondent No.1-Mansaram is directed to pay the amount of maintenance to revisionist No.1-Savitri Devi at the rate of Rs.1,000/- per month by the 7th of each month from the date of passing of this order. Since, the revisionist no.2-Deepak and revisionist No.3- Pradeep are now major, as such they are not entitled to get maintenance. (Dharam Veer, J.) June 24, 2008 Rajeev Dang