RADHESHYAM Vs. FORANTI W/O. RADHESHYAM

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) By filing instant criminal revision under sec. 397 read with sec. 401 Cr.P.C. the petitioner has prayed to quash and set aside the order dtd. 30/1/2019 passed by the Court of Addl. Sessions Judge (Special Court), Sawaimadhopur in criminal appeal No. 22/2018 (36/2018) whereby the appellate court while dismissing the appeal, maintained the judgment dtd. 23/2/2018 passed by the Court of Civil Judge and Judicial Magistrate, Bonli, District Sawai Madhopur.

(3.) Learned counsel for the petitioner argued that the courts below while passing the impugned orders failed to consider that the respondent herself treated cruelty with the petitioner and his family members and the respondent herself did not want to live with the petitioner. Therefore, the petitioner filed a suit for declaration of marriage as null and void. Vide judgment and decree dtd. 9/9/2008, the learned court below decreed the suit against the respondent and dissolved the marriage between them. In appeal the aforesaid judgment was quashed and set aside and the matter was remanded to the trial court for deciding the matter afresh by providing opportunity to the respondent. The learned trial court again decreed the suit against the respondent vide judgment and decree dtd. 2/6/2017 by declaring their marriage as null and void. Thus, it is clear that the petitioner and the respondent are not having relations of husband and wife and therefore, the application filed by the respondent-wife is not maintainable but the learned courts below did not properly consider this important aspect while awarding the maintenance in favour of the respondents. It is settled proposition of law that after divorce, the wife is not entitled to get maintenance under the Domestic Violence Act. Learned counsel submits that the respondent also filed an application under sec. 125 Cr.P.C. before the court below for maintenance. The court below awarded interim maintenance of Rs.3500.00 per month in favour of the respondents and the petitioner is continuously making the payment of maintenance amount to them. After passing the impugned judgment and decree dtd. 9/9/2008 on divorce petition, the petitioner remarried with other lady and having two children and the respondent challenged the judgment and decree after remarriage of the petitioner. The respondent/claimant is receiving the maintenance under sec. 125 Cr.P.C, therefore, the respondents/complainant are not entitled to get maintenance under the provisions of sec. 23 of the Domestic Violence Act but the courts below while passing the impugned judgments have failed to consider this aspect of the matter. The complainant has neither produced any documentary evidence nor any reliable evidence available on record in respect of the income of the petitioner.