SHAMIM BANO Vs. ASRAF KHAN

JUDGEMENT

(1.) Heard. This petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (in short "the Cr.P.C.") aggrieved by order dated 6-12-2004 passed by the Special Judge & Additional Sessions Judge, Durg in Criminal Revision No. 275/1999, by which, revision against order of the Magistrate, rejecting application for grant of maintenance under Section 125 of the Cr.P.C., has been affirmed.

(2.) Relevant facts, necessary for decision of the present case and issue involved therein, are that marriage between the petitioner and the respondent was solemnized on 17-11-1993. Soon thereafter, dispute arose between the parties and after having stayed in the matrimonial house for about 40 days, the petitioner came back to her parental house, alleging commission of offence under Section 498A of the IPC against the respondent and his family members. The petitioner moved an application under Section 125 of the Cr.P.C. against the respondent before the Judicial Magistrate First Class, Durg for grant of maintenance on the pleadings that the respondent has neglected to maintain the petitioner; the petitioner is unable to maintain herself; she has been subjected to cruelty, and therefore, entitled to maintenance of Rs. 2,000/-per month. After enquiry, the application was rejected by the Magistrate holding that the allegation of cruelty is not proved and the petitioner is not justified in living separately, hence, the petitioner is not entitled to grant of maintenance. Aggrieved by the said order, a revision was preferred, which was also dismissed giving rise to instant petition.

(3.) Learned counsel for the petitioner contended that it was specifically pleaded, and there is overwhelming evidence led by the petitioner before the learned Magistrate to prove that the petitioner, soon after the marriage, was subjected to cruelty in connection with demand of dowry, as respondent and his family members were not prepared to allow the petitioner to reside in the matrimonial house and her father was compelled to take her back, whereafter the respondent neglected and deserted the petitioner, entitling the petitioner to grant of maintenance. Learned counsel for the petitioner submitted that the evidence has been disbelieved mainly on account of decision of the criminal case, in which, respondent and his family members have been acquitted ignoring that against the order of acquittal, appeal has been filed, and the same is pending. Learned counsel further contended that there is specific evidence that soon after the marriage, the petitioner was harassed and the Court below ought to have appreciated that in the summary proceedings, the burden of proof is not as high as is required in civil proceedings. It is also argued that the Courts below have ignored to take into consideration that in view of the cruelty meted out to the petitioner, she is fully justified in living separately, and therefore, that could not be made a basis to refuse grant of maintenance.