IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT SMT. RAJESH KUMARI VS. YOGENDRA SINGH S.B.Cr. Revision Petition No.823 Of 2008 under Section 397 read with section 401 Cr.P.C. against the order dated June 30, 2008, of Judge, Family Court, Kota in criminal case No. 852 of 2003 whereby the application under section 125 Cr.P.C. filed by the petitioner was rejected. Date of Order : February 5, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Naseemuddin Qazi, for the petitioner Mr. Atul Saxena for the respondent. BY THE COURT : This revision petition has been filed by the petitioner Smt. Rajesh Kumari, against the order dated June 30, 2008, of Judge, Family Court, Kota in criminal case No. 852 of 2003 whereby the application under section 125 Cr.P.C. filed by the petitioner was rejected. 2. Brief facts giving rise to this revision petition are that the petitioner was married with the respondent on January 17, 2001 with whom she lived about some months thereafter the matrimonial environment started deteriorating because of greedy attitude of in-laws who started demanding dowry in the form of money and other items which resulted expulsion of the petitioner from her husband's house and from March 16, 2003 the petitioner has been living at the house of her father and now her father also expired and her mother is also not keeping good health and the petitioner is not having any source of income thus the hardship and problem of keeping soul and body together is at the climax of its worst. In these circumstances the petitioner filed application under section 125 Cr.P.C. demanding maintenance from her husband in the sum of Rs. 5000 per month, who is very much in the capacity of making payment as he is running a shop of photography and earning Rs. 10,000 and odd from the shop whereas he is living an easy life without any burden of liability. The respondent stated in his reply that the petitioner wife is living apart with her parents without any cogent reason so she is not entitled to any maintenance. It is stated that attempt was made to bring the parties for settlement of dispute and to bring them to a point of compromise but all failed. After hearing both the parties, the Judge Family Court vide his order dated June 30, 2008 dismissed the application under section 125 Cr.P.C. Hence this revision petition. 3. The learned counsel for the petitioner submitted that the Judge Family Court rejected the application on the ground that the petitioner could not prove that she was being harassed for dowry demand and she was expelled by her husband and the claim under section 9 of the Hindu Marriage Act in which she did not file the reply and in support of her application under section 125 Cr.P.C. she could not prove cogent reasons justifying her living separately. In the application the petitioner stated that the behaviour of the respondent towards her was cruel and he gave beating to her. Question of giving reply to the claim under section 9 of the Hindu Marriage Act is virtually that was an exparte decree because the husband lives in Bundi and the suit was also filed at Bundi and threats were given to her thereby she terrorised and could not gather courage to go to Bundi to face the trial and as a result of which exparte decree against her was passed by the trial court. Against the said exparte decree the petitioner filed appeal which is pending before this court. The petitioner given out that apart from the exparte decree passed against the petitioner, still she is entitled to maintenance from her husband in view of judgment of Yashwant Shilpkar vs. Samta Shilpkar and another (2003 Cr.L.J. NOC 274 (M.P.). In this case it was held that even if earlier decree for restitution of conjugal rights is not complied with by the wife, a divorced wife has right to claim maintenance from husband. But the Judge Family Court has not considered all these arguments and rejected the application. Thus the order of the Family Court rejecting the application deserves to be set aside. 4. The learned counsel for the non- petitioner opposed the arguments of the petitioner and submitted that the order passed by the Judge Family court is just and proper and there is no illegality in it so as to call for any interference in the revisional jurisdiction. The Judge family court has rightly rejected the application of the petitioner under section 125 Cr.P.C. 5. I have heard the learned counsel for the parties and perused the judgment passed by the Judge Family Court. The Judge Family Court has not taken into consideration all the facts and circumstances of the case. The cases relied on by the petitioner have not been considered properly. 6. For the reasons mentioned above, the order of the Family Court dated June 30, 2008 is set aside and the matter is remanded back to the Judge Family Court Kota to rehear both the parties. The arguments raised in this revision petition shall also be considered afresh and decide the matter as early as possible. 7. This revision petition is disposed of with the above directions. As the main petition has been dispossed the stay application also stands dispossed. (Mahesh Chandra Sharma) J. OPPareek/