Court: Madhya Pradesh High Court
Bench: JUSTICE N.K. Gupta
Mamta Bai & Anr. Vs. Manoj Kumar Rai & Anr. On 8 January 2014
Law Point:
Protection of Women from Domestic Violence Act, 2005 — Section 12 — Grant of maintenance and return of Stridhan of applicant No. 1 — Considering circumstances in which applicant left house of respondent at intervention of police and legal steps by father to take his daughter home — It cannot be presumed that applicant left house without taking her ornaments, it was not alleged by applicant that ornaments were in custody of respondent or kept in locker — ASJ rightly accepted testimony of ‘G’ in this regard and rightly found Trial Court committed error in directing return of entire Stridhan to applicant No. 1 — No interference required in criminal revision — No illegality committed by Appellate Court in deciding appeals filed before it — No relief can be given to applicants more than granted by Appellate Court — Revision relating to return of Stridhan cannot be accepted.
JUDGEMENT
1. Both the revisions are filed against the order dated 10.3.2011 passed by the learned First Additional Sessions Judge, Seoni in various criminal appeals and therefore, both the revisions are hereby decided with a common order.
2. Vide order dated 14.7.2010, the learned J.M.F.C. in Misc. Criminal Case No.6/2010 has granted the maintenance of `700/- per month to the applicants and a compensation of `5,000/-was awarded alongwith the direction that the entire Stridhan be returned to the applicant No. 1. In Criminal Appeal Nos.92/2010 and 118/2010, the learned First Additional Sessions Judge vide order dated 10.3.2011 modified the amount of maintenance from the sum of `700/-to the sum of `2,000/-. However, the Stridhan as directed by the J.M.F.C. was disallowed. Being aggrieved with the aforesaid orders, the applicants have preferred the revision No.717/2011 to get the order of the J.M.F.C. restored by which the direction was given for return of the Stridhan, whereas in Criminal Revision No.716/2011, the impugned orders are challenged to enhance the maintenance amount.
3. The facts of the case, in short are that, the applicants have filed a complaint under Section 12 of the Protection of Woman from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’) with the pretext that various order be passed by the trial Court for grant of the maintenance to the applicants and return of Stridhan of the applicant No. 1.
4. After considering the evidence adduced by the parties, the learned J.M.F.C. accepted the complaint of the applicant upto the extent that the compensation of `5,000/- be given to the applicant No. 1 by all the respondents and a maintenance of `700/-per month be given to the applicants by the respondent Manoj and it was also directed that the gifts given to the applicant No. 1 as shown in the Annexure-P/37 shall be returned to the applicant No. 1. In the appeals filed by the applicants as well as the respondents, the learned Additional Sessions Judge modified the order and the maintenance was enhanced in manner as mentioned above, whereas the direction relating to return of the gifts was set aside
5. I have heard the learned Counsel for the parties at length.
6. The learned Counsel for the applicants mainly prayed for enhancement of maintenance amount and that maintenance was not granted from the date of application. In this connection, a reliance is placed on the order passed by the Single Bench of this Court in the case of “Phoolwati Bai (Smt.) v. Rewaram Pandey, 2002 (II) MPWN 190. It is also prayed that the appellate Court discarded the order passed by the trial Court relating to return of the Stridhan. All the such objections may be considered one by one.
7. The learned Additional Sessions Judge found in its orders that the respondent Manoj had his net salary of `10,382/-according to the pay slip of the month of June, 2009. It is also found that the applicants were getting a maintenance of `1300/-due to an order passed under Section 125 of the Cr.P.C. and therefore, after adjusting that maintenance amount, an additional amount of `2,000/- was granted. It is also observed by the appellate Court that the salary of the respondent Manoj may be divided into the four parts. The respondent Manoj requires for his expenditure and for the expenditure due to his visits, in his area being a Patwari. He was also responsible for his expenditure of his daughter. However, he gave approximately 33% of the salary as a maintenance amount because in all the maintenance of `3300/- was granted, whereas salary of the respondent was `10,382/-. The deduction done by the learned Additional Sessions Judge, appears to be correct. The applicants are residing with the father of the applicant No. 1 and therefore, they did not require any expenditure for any establishment, whereas being a Patwari the respondent Manoj is required to get a house on rent and also to establish his remaining family at his place of posting and l/3rd portion of the salary may be exhausted to establish the house etc. at the place of posting and remaining 2/3rd salary, he could use to maintain his family residing alongwith him. He has a wife and two children and therefore, his wife and one child could get 50% of the remaining 2/3rd salary. The learned Additional Sessions Judge has granted the sum in such a deduction and therefore, it cannot be said that a lesser sum was granted to the applicants by way of maintenance.
8. The learned Counsel for the applicants has submitted that the applicants have filed, a pay slip of the respondent Manoj and at present, he is earning a salary of `17,449/-. However, such document cannot be taken on record in the revision. In the revision, the revisionary Court has to stand on the shoes of the trial Court and therefore, the evidence laid before the trial Court should be considered, if any illegality or perversity is to be considered in the order passed by the trial Court. If salary was increased as a subsequent event then, the application for enhancement of the maintenance amount may be moved before the trial Court on the basis of such a subsequent event. If it is permitted by law then, such certificate relating to the enhanced salary cannot be considered in the revision. The evidence produced before the trial Court shall be considered as it is, in the present revisions and therefore, the salary certificate is to be proved by the applicants before the trial Court and the Ex.P/15 shall be the basis for computation of the maintenance amount.
9. The applicants have prosecuted the proceeding under Section 125 of the Cr.P.C. in which the maintenance was directed for a sum of `1300/- and the applicants can get the enhancement of maintenance by moving an application under Section 127 of the Cr.P.C. The proceedings may not be permitted to harass one of the party by another party. It is true that there is no bar to prosecute two proceedings but, if two proceedings are prosecuted for the maintenance amount then, the amount should be such so that the respondent can pay. The wishes of the wife and her child cannot be fulfilled by way of payment. If husband is not capable to pay any sum then, he cannot be burdened so that by passing of that order, he shall be harassed. The applicants are getting the maintenance amount by way of two different forms after calculation and therefore, it would be apparent that an appropriate maintenance was granted by the learned Additional Sessions Judge. Under such circumstances, there is no ground by which the maintenance granted to the applicants may be increased and therefore, the revision filed for that relief cannot be accepted.
10. The applicants have also prayed that the maintenance may be granted from the date of application. However, it would be apparent that no interim order was passed by the trial Court. Though, the applicants could get the interim order of maintenance in their favour and also they were getting the maintenance of `1300/- under Section 125 of the Cr.P.C. It is nowhere shown that any delay was caused by the respondent in disposal of the present matter. The applicants have closed their evidence on 24.6.2010 and the trial Court passed the order on 15.7.2010 so the respondents took a very short period to complete their evidence. Under such circumstances, there is no reason so that the maintenance was to be granted from the date of complaint.
11. So far as the return of Stridhan is concerned, it was for the applicants to prove that such Stridhan was provided to the respondents at the time of her marriage and secondly it was not returned. In this connection, the applicants had examined so many witnesses. Out of them, Mamta Bai (PW-1), her father Raghuveer Singh Rai (PW-2) Munshilal (PW-3) and an Advocate Krishna Kumar Rai (PW-5) were examined. It was shown that a register Ex.P/37 was prepared for the gifts received in the marriage ceremony and the gifts, which were given to the applicant No. 1 and the respondent Manoj in their marriage. It is strange that the entire gifts were given by father of the applicant No.1, but Raghuveer Singh (PW-2) did not refer the entry register Ex.P/37. Advocate Krishana Kumar Rai has stated that the golden ornaments of 28 tolas were given to the applicant No. 1 and silver ornaments of 28 tolas were also given to the applicant No. 1 and her husband. In the cross-examination, the witness Krishna Kumar Rai has accepted that he had no relation either with the applicant Mamta Bai or her father, so that he would have attended her marriage. If the description of the witness Krishna Kumar Rai, Advocate is considered with the register Ex.P/37 then, it would be apparent that he is telling a falsehood. In the register, the entire gold was shown to be of 8 tolas, whereas Mr. Krishna Kumar Rai, Advocate has stated that the golden ornaments of 28 tolas were given to the applicant No. 1 and her husband. It would be apparent that Raghuveer Singh Rai, father of Mamta Bai was a teacher and he was not capable to give a dowry of huge golden ornaments as told by Mr. Krishna Kumar Rai. Hence, it would be apparent that the Krishana Kumar Rai was a concocted witness, who gave his statement in favour of the applicants without any reason.
12. Similarly, Munshilal (PW-3) was an assistant teacher, who is colleague of Raghuveer Singh Rai, has stated that he maintained the register Ex.P/37 and done various entries. There are so many drawbacks in maintaining the register. He accepted that he used only blue and black dot pen and when some entries were found done by pencil he could not reply as to why he modified such entries. If the gifts were given to the respondent Manoj and other respondents then, according to the law prevalent such list should be signed by groom and his parents but there was no signature appended either by the respondent No. 1 or other respondents on the document Ex.P/37. The applicant Mamta Bai has accepted that so many articles were in the house of the respondents but thereafter, she added that those articles were given by her father. It would be apparent that such a register could be prepared thereafter. The witness Munshi Lal (PW-3) had shown a sum of more than `1,00,000/- received from various guests, who gave that sum in cash to the applicant Mamta Bai and her husband. Since Munshi Lal could record the sum in the register then, it would be apparent that the cash envelopes were given to Mamta, which were handed over to Munshilal and therefore, Munshilal could mention the amount received from the various guests. Under such circumstances, it was to be shown that the gifts and cash collected by Munshi Lal was actually handed over to the respondents. Raghuveer Singh Rai father of the applicant could not show that all the gifts were opened at that time and after summing-up the cash, received in the gifts and same were given as it is to the respondent Manoj.
13. The possibility cannot be ruled out that when the litigation was initiated, such a register was prepared. It is nowhere clear as to why the register was not produced in other cases fought between the parties. Under such circumstances, the witness Munshi Lal, who is a colleague of Raghuveer Singh Rai, father of the applicant No. 1 could prepare a register on the direction of his friend Raghuveer Singh Rai in an afterthought manner. It was for the applicant No. 1 and her father to prove that the gifts shown in the register were purchased and the gifts were handed over to the respondents. No bill etc. could be shown by Raghuveer Singh Rai that he purchased those articles and therefore, it was not proved beyond doubt that such gifts were given to the respondents at the time of marriage. Hence, the learned Additional Sessions Judge has rightly discarded the order passed by the learned J.M.F.C. that the gifts may not be returned. Also the marriage took place in the year 1998 and after ten years of the marriage, all the articles which were in use should have lost their value and therefore, if such articles except the ornaments be returned then, certainly it makes no difference either to the applicant No. 1 or to the respondent Manoj and therefore, there is no basis to pass the order relating to the Stridhan except the ornaments. The insistence of the applicant to get the Stridhan back indicates that the applicant wants to get more than Stridhan, which was actually given to the applicant No. 1or to harass the respondent Manoj otherwise, after ten years of the marriage, there was no reason to get those used articles like refrigerator, double bed etc.
14. So far as the ornaments are concerned, learned Counsel for the applicants has submitted that on the basis of the statement given by Ku. Gulsupriya Rai (DW-2), the appellate Court found that the applicant No. 1 took all her ornaments with her, when she left the house of the respondent Manoj. Except that evidence, there is no reason shown that the applicant No. 1 took her ornaments with her. It is true that the witness Ku. Gulsupriya Rai is daughter of the respondent Manoj and the applicant No. 1 and she was residing with her father and it was possible that she could say in favour of her father. However, her oath is to be considered with the oath of the applicant Mamta Bai (PW-1). If the applicant Mamta Bai was interested to keep her children with her then, why she selected a male child and left a female child at the house of the respondent Manoj. The fact told by Ku. Gulsupriya Rai was not contradicted by the applicant Mamta Bai that, when the respondent Manoj was at the police station, she left the house of the respondent Manoj, and she was never deprived from her ornaments in the house of the respondent. The applicant had two children and got an intervention of the police in leaving the house, her father who was a teacher took all the legal steps in taking his daughter to his home and the applicant Mamta took her son only with her. Looking to such circumstances, the testimony of the witness Ku. Gulsupriya Rai appears to be correct that when her father was not at home, her mother left the house of the respondent Manoj alongwith her brother and therefore, if she has alleged that her mother took the entire ornaments then, her statement is more value than the statement of the applicant Mamta Bai.
15. When such a litigation begins, modification in the factual position is being started by both the parties. If the entire circumstances are considered in which the applicant Mamta Bai left the house of the respondent Manoj, it cannot be presumed that the applicant Mamta left the house of the respondent Manoj without taking her ornaments. It was not alleged by the applicant Mamta that the ornaments were in the custody of the respondent Manoj or they were kept in a locker. Under such circumstances, the learned Additional Sessions Judge has rightly accepted the testimony of Ku. Gulsupriya Rai that the applicant Mamta took all the ornaments with her and therefore, the learned Additional Sessions Judge has rightly found that the trial Court has committed an errorjnjiirecting the return of entire Stridhan to the applicant No. l.
16. On the basis of aforesaid discussion, it would be apparent that no illegality or perversity has been committed by the appellate Court in deciding the appeals filed before it In this connection, the order passed by the Single Bench of this Court in the case of Phoolwati Bai (Supra), it cannot be said that in such orders passed by the Courts below, no interference should be done [in criminal revision. Under such circumstances, no relief can be given to the applicants more than granted by the appellate Court and revision relating to return of Stridhan as well as enhancement of maintenance amount cannot be accepted. No perversity or illegality is visible in the order passed by the appellate Court. Consequently, both the revisions filed by the applicants are hereby dismissed. No order as to costs.
17. Copy of the order be sent, to the Courts below alongwith their records for information.
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for consultation or advice by visiting Contact Us
Leave A Comment