SHASHI DEWANGAN Vs. NANDLAL DEWANGAN

JUDGEMENT

(1.) This Criminal Revision under Sub Section-4 of Section-19 of the Family Courts Act, 1984 read with Section-397 & Section-401 of the Code of Criminal Procedure, 1973 is directed against the order dated 27-07-2005 passed by the Second Additional PrincipalJudge, Family Court. Durg. C.G. passed in M.J.C. No. 87/2000 whereby an application filed by the applicant herein under Section-125 of the Cr.P.C., was dismissed.

(2.) Brief facts are that the applicant Smt. Shashi Dewangan was married to the non-applicant Nand lal Dewangan on 05-06-1990 and a son named Aayush was born out of the wedlock on 25-03-1991. Aayush had a facial deformity by birth and there was a hole in the heart valve. On this ground, the non-applicant started harassing the applicant herein and discord soon started between them. On 18-06-1992, the applicant left the matrimonial home. The non-applicant did not take back the applicant for three and half years and efforts made by the father of the applicant to arrive at a reunion failed since the non-applicant refused to live with the applicant. Upon a complaint being lodged by the applicant, prosecution was initiated under Section-498-A of the IPC against the non-applicant and his family members. The non-applicant was convicted under Section-498-A of the IPC in Criminal Case No.24/ 1997 by the Judicial Magistrate First Class, Durg vide judgment dated 03-03-2004. In Criminal Appeal No. 104/2004, the learned Sessions Judge, Durg affirmed the conviction of the non-applicant herein under Section-498-A of the IPC. It was also informed at the bar that a decree for divorce has also been passed between the parties.

(3.) In the year-2001, the applicant filed an application under Section-125 of Cr.P.C. for maintenance of herself registered as M.J.C.No.73/2002. The Additional Chief Judicial Magistrate, Durg allowed the application and directed the non-applicant herein to pay maintenance @ Rs.1,500/- per month to the applicant herein from 20-09-2003. The non-applicant preferred a Criminal Revision No.441/2003 before the learned Special Judge and Additional Sessions Judge, Durg. By order dated 16-01-2004, the learned Additional Sessions Judge, Durg affirmed the finding of the learned Additional Chief Judicial Magistrate, Durg, that the applicant had sufficient reason for refusal to live with her husband as required under Sub Section-4 of Section- 125 of Cr.P.C. However, it was held that pleadings and evidence of the applicant herein relating to the question whether she was unable to maintain herself were vague. It was also held that specific evidence and findings were necessary on the question whether the applicant herein was unable to maintain herself on the date of the application. On these grounds, order dated 29-12-2003 passed by the Additional Chief Judicial Magistrate, Durg in M.J.C.No.73/2002 was set aside and the matter was remanded with a clear direction that the trial Court shall, after giving sufficient opportunity to the parties to lead evidence relating to the question whether the applicant herein was unable to maintain herself, decide the application under Section-125 of Cr.P.C. in accordance with law.