Monday, June 2, 2014

Village wife mixes poison in food, says f-in-law had eye on her, files 498a & maintenance !! Dedicated to all ppl those who think that ONLY the ultra modern women are dangerous !!

Village wife mixes poison in food, says f-in-law had eye on her, files 498a & maintenance !! Dedicated to all ppl those who think that ONLY the ultra modern women are dangerous !!


* Wife leaving husband's house on her own will / along with her father is NOT entitled to maintenance u/s 125 CrPC
* Wife accepts that a bottle of poison was found in her box ! could indicate that she was the one who misbehaved
* Husband re marrting 3 years after wife leaving will not become grounds for her to claim maintenance
* Wife filing false 498a and loosing same proves that there is no dowry torture
* it is true that no limitation is fixed for filing of the maintenance application but, keeping silence for one year by the applicant indicates that being guilty conscious, she did not file the application for maintenance for one year after leaving the house of the husband


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Criminal Revision No.243/2001

HIGH COURT OF MADHYA PRADESH AT JABALPUR

SINGLE BENCH

PRESENT :

HON'BLE SHRI JUSTICE N. K. GUPTA

CRIMINAL REVISON NO.243/2001 Smt. Shashikala Bai

Vs.

Mahendra Singh

**** Shri Manish Datt, Senior Advocate with Shri Rahul Sharma, counsel for the applicant.

None for the respondent.

**** ORDER

(Delivered on the 13th day May, 2014)

Vide order dated 26.7.1999 the learned JMFC, Waraseoni in MJC No.71/1991 directed that the applicant shall be provided a maintenance of Rs.300/- per month under Section 125 of the Cr.P.C, by the respondent and the previous maintenance be also paid. In Criminal Revision No. 128 of 1999 the Second Additional Sessions Judge, Waraseoni vide order 9.11.2000 set aside the maintenance order passed by the trial Court and dismissed the maintenance application of the applicant. Being aggrieved with the order dated 9.11.2000 passed by the learned Second Additional Sessions Judge, Waraseoni, the applicant has preferred the present revision.

2. The facts of the case in short are that, the applicant moved a maintenance application on 20.6.1990, that her marriage took place on 25.6.1988 and immediately after the marriage, the custom of gauna took place and she was sent to the house of the respondent. The applicant was kept with comfort for 4-5 months, thereafter she was harassed and quarrel took place. Father of the respondent was a bad character person who, tried to create illicit relations with the applicant. The applicant told about that fact to the respondent and his mother but, on the contrary they blamed upon her that she was a characterless woman. The applicant was beaten by the respondent and his father in between 5.5.1989 to 7.5.1989 and thereafter, a letter was sent to father of the applicant with various allegations of her character. So on 8.5.1989, father of the applicant came to the house of the respondent and took the applicant on 9.5.1989. It is also pleaded that she was directed to sign a document relating to divorce forcefully and that document was neither read to the applicant or her father. An FIR was lodged by the applicant at Police Station, Katangi on 15.5.1989 and a criminal case was tried against the respondent and his family members. The applicant pleaded about her dependency and income of the respondent and therefore, she claimed a maintenance of Rs.500/- per month from the respondent. The pleading was modified in the year 1994, that the respondent entered into a second marriage with one Chhoti Bai and a girl child was also born to the respondent with Chhoti Bai on 22.11.1993. It was also mentioned that Chhoti Bai is now known as Laxmi Bai and therefore, the maintenance was demanded due to second marriage of the respondent. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
 
3. The respondent in his reply denied the allegations made upon him. He denied about the second marriage and his income. He has submitted that the agricultural land was of his father and he has no income of his own. It was alleged by the respondent that two boys from the village of the applicant came in the night and the applicant was found in a doubtful position with those boys. In her box, out of those two boys, a photograph of one boy was found and the applicant accepted that she had relations with that boy as husband and wife. In February 1989, the applicant mixed some substance in the vegetable cooked by her but, due to doubt, it was not consumed by any of the family members of the respondent and the vegetable was thrown. Some chicks consumed that vegetable and they died. 8-10 days thereafter, again the vegetable was found mixed with some coloured substance and therefore, when that box of the applicant was opened, it was found that the applicant kept a poison democron in that box. The applicant and her sister apologized for that mistake and therefore, no report was filed and thereafter, the applicant tried to show that she was of unsound mind and ultimately on 9.5.1990 on the request of the applicant and her father, the applicant was directed to leave the house of the respondent after execution of divorce deed and therefore, a divorce took place between the parties by execution of such documents. The applicant was residing away from the respondent without any reasonable ground and therefore, it was requested that the maintenance application of the applicant may be dismissed.

4. The learned JMFC after considering the evidence adduced by the parties, granted a maintenance of Rs.300/- per month and also directed the respondent to pay the remaining interim maintenance. In Criminal Revision No.128/1999 the learned Second Additional Sessions Judge, Waraseoni dismissed the maintenance order passed by the JMFC, Waraseoni as well as the application under Section 125 of the Cr.P.C. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

5. I have heard the learned counsel for the parties.

6. When the applicant has challenged the order of the revisionary Court and she has tried that maintenance order passed by the trial Court be maintained then the illegality of that original order was also to be considered in the present case. While considering the maintenance application, it was the duty of the trial Court to assess the expenditure and dependency of the wife and also the income of the respondent. Shashikala Bai (PW3), has stated that she was not getting any income of her own and therefore, a maintenance be granted. She was residing with her father and therefore, she did not require any maintenance for payment of rent of the house in which she was residing and therefore, if her expenditure is calculated by the trial Court at the rate of Rs.300/- per month then looking to the dearness of the year 1991 such assessment cannot be discarded. However, the witness Meghraj (PW2) has admitted that the applicant was doing the job of labourer in the fields of her father and at that time a sum of Rs.20/- was to be paid to the labourer for each day and due to assistance of the applicant, her father was saving the labour charge of one labourer on each day. Under such circumstances, it would be apparent that the applicant was earning a sum of Rs.600/- per month and that amount may be reduced to Rs.500/- because it was not necessary for her to work in the fields of her father for all 30 days. Under such circumstances, the applicant was earning more than her dependency and therefore, she was not entitled to get any maintenance from the respondent because she was competent to maintain herself.

7. It is true that the applicant could not show any agricultural land in the name of the respondent. However, the respondent was a healthy person and therefore, his income could be assessed as being of an unskilled labourer. Looking to the evidence given by the witnesses, the income of a male labourer in those days was Rs.30/- per day and therefore, for 25 working days his income could be computed at the rate of Rs.750/- per month and therefore, he was capable of paying a maintenance of Rs.300/- per month to his wife. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

8. The learned Senior Advocate has submitted that the applicant was harassed in the house of the respondent and therefore, maintenance was to be granted to her. He placed his reliance upon the order passed by the single Bench of Jharkhand High Court in the case of "Sunil Kerketta Vs. State of Jharkhand and another" [III (2013) DMC 819 (Jha.)]. The reliance is also placed on the order passed by the single Bench of this Court in the case of "Dalibai vs. Rajendra Singh" [2006 (1) MPLJ 495] and "Hari Mangal @ Hari Singh Vs. Phool Kunwar" [2005 (3) MPLJ 124). However, the applicant failed to prove that any harassment was done by the respondent and his family members. Shashikala Bai (PW3) has stated that she was beaten by the respondent and her father-in-law. Some allegations were made that she mixed some poison in the vegetables and ultimately chains were placed on her legs. She was forced to sign the divorce document and forcefully sent to her father's house. Tilakchand (PW4) and Meghraj (PW2) were examined to show that when the applicant was taken to her father's house, she had some marks of chains in her legs. However, the applicant has pleaded that soon after reaching her father's house she had lodged an FIR at Police Station, Katangi but, no copy of that FIR was filed in the present case. If the marks of chains were visible on her ankles then after lodging the FIR, she should have been examined by some doctor and an MLC report must have been prepared but, no such MLC report is produced by the applicant before this Court. On the contrary, it is accepted by the applicant that the respondent and his family members were acquitted in the police case tried for offence under Section 498-A of I.P.C. Under such circumstances, the testimony of the applicant cannot be believed that she was tortured by the respondent and his family members.

9. It is strange that there is no allegation that the respondent and his family members demanded any amount as dowry from either the applicant or her father. Marriage took place on 25.6.1988 and for five months, she was kept with comfort then suddenly what sort of problem arose since November, 1988 that the respondent and his family members started to torture the applicant. In this connection the allegations made by the respondent Mahesh Bisen (DW1) are to be considered. Shashikala Bai (PW3) refused all such allegations but, she has accepted that when her box was searched, a bottle of poison was found in it. Under such circumstances, the possibility cannot be ruled out that it was the applicant who, was not behaving properly. She has accepted that the poison was found mixed in the vegetable but it was mixed by her younger mother-in-law and the blame was shifted on the applicant and therefore, it is admitted by the applicant that the poison was found mixed in the vegetable prepared. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

10. Applicant Shashikala Bai and her father tried to prove a document Ex.A/1, to show that a letter was written by the respondent to the father of the applicant. However, the original document was not produced before the Court and therefore, by making the exhibit marked on the photo copy, that document was not duly proved. It appears that certified copy of the document was taken by the applicant from the record of the criminal case but, it was necessary to prove the original, by calling that record and thereafter, that document could be proved. The applicant could not prove that the respondent appended his signature below the document. The document was neither an inland letter nor a postcard. It was a letter written on plain paper and therefore, its postal envelope should also have been proved that it was written to father of the applicant. If the signature of the respondent is compared from the document Ex.A/2 then, it would be apparent that signature given below the text of the document Ex.A/1 was not of the respondent.

11. Also in the pleadings, the applicant has pleaded that father of the respondent had a bad eye upon her and therefore, the respondent wrote such a letter to the father but, in the statement before the Court, Shashikala Bai (PW3) did not allege that father of the respondent had bad eye upon her. Under such circumstances, it appears that the letter is prepared by efforts of father of the applicant and it was not written by the respondent. The respondent could write such a letter, if his father had a bad eye over the applicant. When the applicant did no say before the trial Court about that fact then certainly by mere pleadings, that fact cannot be proved and therefore, it was not established that the letter Ex.A/1 was written by the respondent or sent to the father of the applicant. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

12. Under such circumstances, it would be apparent that the respondent did not invite the father of the applicant to take the applicant but, father of the applicant himself came and took his daughter. If there was no fault of the applicant then as to why she was permitted to be taken after execution of a divorce document. The applicant has claimed in her pleadings that divorce document was prepared but, neither it was read over to her nor to her father. It would be apparent that two documents were prepared, one was prepared from the side of the respondent and another was prepared from the side of the applicant and it is also apparent that at that time, father of the applicant was present and after execution of these documents, he took the applicant. Under such circumstances, though there was no effect of divorce due to the document Exs.A/2 and A/3, it would be apparent that the applicant had knowledge of that document and she appended her signature on her own. Under such circumstances, the execution of document cannot be treated as a torture done by the respondent to the applicant.

13. By the basis of the aforesaid discussion, it would be apparent that the applicant was kept with comfort till November, 1988 and she was taken by her father on 9.5.1989. In that period of six months the applicant could not prove that any torture was done upon her. She could not prove any harassment in the criminal case of offence under Section 498-A of I.P.C as well as in the divorce petition filed by her under Section 13 of the Hindu Marriage Act. That divorce petition was accepted because the respondent gave his consent that decree of divorce may be passed and therefore, it was given. Under such circumstances, the respondent could prove that there was an allegation upon the applicant that she was found with two boys previously by the applicant in a doubtful position. She tried to mix some poison in the vegetable prepared for the family and therefore, it is established by the respondent that the applicant was the person who, was a quarrelsome lady and she could not prove that she was being harassed by the respondent or his family members. Under such circumstances, looking to the factual differences, the law laid in the cases of Sunil Kerketta (supra), Dalibai (supra) and Hari Mangal (supra), cannot be applied in the present case. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

14. The learned counsel for the respondent has submitted that the applicant applied for maintenance one year after her leaving the house of the respondent. The learned Senior Advocate has submitted that there is no limitation for filing of the maintenance application. In this connection, the learned Senior Advocate has placed his reliance upon the order passed by the single Bench of this Court in the case of "Shakun Bai Vs. Ramji" [1998 (1) M.P.W.N Note 166). It is true that no limitation is fixed for filing of the maintenance application but, if it is not filed within the reasonable period then a presumption shall go against the applicant that she had no cause to live separately from her husband and she had filed an application by creating some causes. In the present case, it is true that no limitation is fixed for filing of the maintenance application but, keeping silence for one year by the applicant indicates that being guilty conscious, she did not file the application for maintenance for one year after leaving the house of the husband. When she left the house of the respondent on her own and she was creating mischief in the house of the respondent, then she was not entitled to get any maintenance from her husband by living separately. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

15. The applicant took a ground that the respondent entered into a marriage with Chhoti Bai @ Laxmi Bai in the year 1992 and the learned Senior Advocate has placed his reliance upon the orders passed by the single Bench of Jharkhand High Court in the case of "Jawed Akhtar Vs. State of Jharkhand and another" [III (2013 DMC 748 (Jhar.)] and the single Benches of this Court in the cases of "Savitri Bai Vs. Ranjeet Singh" [1998 (I) M.P.W.N. Note 200] and in the case of "Ramavtar Yadav Vs. Soniya" [2004 (I) MPLJ 294], in which it is laid that if the husband entered into a second married or he was living with another woman and neglected his wife then the wife shall be entitled to get the maintenance and she has a cause not to reside with her husband. In the present case, the applicant could not prove that the respondent has entered into a second marriage. No witness of the marriage was examined. Kotwar Mahendra Kumar (PW6) and Head Constable Ramanlal (PW7) was examined on 22.10.1993 that a child Durga Bai was born to Laxmi Bai and respondent Mahendra at Village Samadpuri. However, both of the witnesses could not prove the document which they had in their possession. When there is a document relating to some fact then oral evidence cannot be accepted, it should be discarded. Kotwar Mahendra Kumar could prove the entry of his Kotwari book that the entry was informed by Tundilal, father of the respondent Mahendra Singh. However, in absence of the Kotwari book, his oral evidence cannot be relied. Similarly Head Constable Ramanlal, brought the Register of death and birth but, that register was in a very bad condition. Neither any paging was done nor entry was in serial order and therefore, without any proof of those entries, his oral evidence relating to registration of birth of Durga Bai cannot be believed. Under such circumstances, the learned Additional Sessions Judge has rightly found that the applicant could not prove the second marriage of the respondent or the respondent was living in adultery with any woman named Chhoti Bai @ Laxmi Bai. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

16. In the present case, it is pertinent to note that the applicant left the house of the respondent in the year 1989 and she could not prove any valid reason not to reside with the applicant therefore, if any second marriage of the respondent took place in the year 1992, then it was not a cause to the applicant not to reside with the respondent thereafter. The cause for not living with the husband should be seen from that event when the wife left the house of the husband. If the husband entered into a marriage three years after that incident when the applicant left his house, then that second marriage cannot be a ground for the first wife to seek the maintenance by living separately. In the orders passed by the single Benches of various High Court including this High Court in the case of Jawed Akhtar (supra), Savitra Bai (supra) and Ram Awatar Yadav (supra), the cause of action arose to the wife at the time when she left the house of her husband whereas, in the present case the alleged second marriage took place three years after, when the applicant left the house of the respondent and therefore, by the alleged second marriage, she could not get any maintenance from the respondent. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

17. The learned Senior Advocate has submitted that ultimately the applicant got a decree of divorce vide judgment and decree dated 28.10.1998 and therefore, being a divorced wife she was not liable to reside with her husband and she is entitled to get maintenance from her husband, till she enters into a second marriage. It is surprising that the certified copy of the decree of divorce or judgment was neither filed before the trial Court or the revisionary Court. The petition under section 125 of the Cr.P.C is a quasi civil litigation and therefore, it was for the applicant to plead such a fact of divorce before the trial Court and her case should be considered on the basis of her pleadings but, neither any pleading was made by the applicant before the trial Court nor certified copy of the decree or judgment of the divorce were filed before the trial Court and hence, such a plea cannot be taken by the applicant before the present Court. The point raised by the learned Senior Advocate, cannot be considered at this stage without any pleading or proof. Under such circumstances, on that count no order of maintenance can be granted to the applicant. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

18. On the basis of the aforesaid discussion, the order passed by the learned Additional Sessions Judge appears to be correct. There is no basis so that any interference can be done in the order passed by the learned revisionary Court by which the order passed by the JMFC was set aside and the application under Section 125 of the Cr.P.C was dismissed. However, it is made clear that the applicant would be free to file a fresh application under Section 125 of the Cr.P.C on the basis of the decree of divorce passed by the competent Court. No order as to costs.

19. Copy of the order be sent to the Courts below along with their records for information and compliance. (N. K. GUPTA)

JUDGE

13.5.2014

bina



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