ONKAR LAL @ ONKAR Vs. MOHAR BAI

JUDGEMENT

(1.) CRIMINAL Revision Petition No. 1036 of 2008 has been filed by the petitioner Onkar Lal @ Onkar under Section 397 read with Sections 401 and 311 Cr.P.C. against the order dated 5.5.2008 passed by Family Court, Kota in Case No. 38/2002 whereby application filed by the petitioner under Section 311 Cr.P.C. was rejected. Cr. Revision Petition No. 1292 of 2008 has been filed against the order dated 8.8.2008 of Family Court in Criminal Case No. 38/2002 whereby the application under Section 125 Cr.P.C. filed by the non -petitioners was allowed and the petitioner has been directed to pay Rs. 1000/ - each from 9.1.2002 to the non -petitioners 2 and 3 and Rs. 1500/ - per month to the non -petitioner No. 1 and Rs. 1250/ - per month each to the non -petitioners No. 2 and 3 and Rs. 1500/ - per month to the non -petitioner No. 1 total Rs. 4,000/ -. The Court also directed the petitioner to pay Rs. 1500/ - towards due payment to the wife till the arrears are not paid. The non -petitioners were also directed to recover the arrears of maintenance allowance as a whole if for any three months the amount of the maintenance is not paid to the non -petitioners. Criminal Revision Petition No. 168 of 2009 has been filed by the petitioner against the order dated 19.12.2008 of the Family Court Kota in Cr. Misc. Case No. 71/2007 requesting the Sessions Judge Chittorgarh for deducting half of the amount of the pay drawn by Civil Judge (Junior Division), Rasmi where the petitioner is posted and the same was directed to be sent through Demand Draft or Banker Cheque and further the matter was directed to be kept on 25.2.2009. Brief facts giving rise to the present revision petitions are that on or about 9.1.2002 the non -petitioners namely Smt. Mohar Bai wife of the petitioner Onkar, Kumari Manisha daughter of Onkar Lal petitioner and Kumari Priyanka daughter of petitioner Onkar (in short non -petitioners) filed an application under Section 125 Cr.P.C. for maintenance against the petitioner in the court of Family Court Kota to this effect that the marriage of the non -petitioner No. 1 was solemnized with the petitioner on 28.5.1991 at village Dabri Kalan and the Gauna ceremony was performed in the year 1993. Thereafter she came to reside in the matrimonial home with the petitioner. It was further alleged that the behaviour of the petitioner was very rude and he used to pressurize the non -petitioner No. 1 for getting the dowry. It is further submitted that from the wedlock, non -petitioner No. 2 and 3 were born. It is also submitted that the petitioner used to beat her many times and one day be beaten the non -petitioner and thrown her out of the house. It is relevant to mention here that the non -petitioner No. 1 has filed criminal complaint against the petitioner and his family members for the offence under Section 498A and 406 IPC. It was further alleged that the non -petitioner is unable to maintain herself and children and for earning her bread and butter she wants maintenance from the petitioner. The petitioner filed reply to the application and it was alleged that after some time of the marriage some dispute arouse between the family on account of the undue interference of the parents of the non -petitioner No. 1, Who used to retort that the petitioner was an employed person and that he was below standard. It was further alleged that the non -petitioner No. 1 developed illicit relations with her brother -in -law (Jija) namely Parmanand son of Ramchanran, who is widower, as a result of which the non -petitioner No. 1 has been residing with him for over a period of last 6 years. As a result of such illicit relations non -petitioner No. 1 conceived and in order to conceal the factum of illicit relationship she got the child aborted. In such circumstances the petitioner filed a divorce petition on 21.7.2000 before the District Judge Jhalawar under Section 13 of the Hindu Marriage act on the ground of desertion and cruelty. The DJ Jhalawar, issued notices to the non -petitioner No. 1 and after service of notice the non -petitioner No. 1 appeared before the DJ Jhalawar and submitted the reply to the divorce petition admitting therein that she had deserted the company of the petitioner on account of the relations between the two having been spoiled. She further stated that she had received a lump sum amount of Rs. 60,000 from the petitioner husband for maintenance of herself and her children and in such circumstances she has prayed that the decree of divorce be passed. In the petition it was further alleged that it is evident that the non -petitioner No. 1 has conceded in clear and unambiguous terms that she was responsible for deserting the company of the petitioner and that she herself has willingly and without any pressure has accepted a sum of Rs. 60,000/ - by way of one time settlement towards he maintenance of herself and her daughters. The non -petitioner No. 1 has filed an application under Section 24 of the Hindu Marriage Act in the divorce petition for getting the expenses. The family Court recorded the statements of AW -1 Mohar Bai on behalf of the applicants whereas statements of NAW -1 Onkarlal, NAW -2 Shiv Prasad, NAW -3 Ramswaroop, NAW -4 Latoorlal and NAW -5 Gangabishan were recorded on behalf of the non -applicant -petitioner herein. The documentary evidence was also got exhibited on behalf of the petitioner. The Family court after hearing the arguments from both the sides, allowed the application under Section 125 Cr.P.C. and awarded maintenance as mentioned above to the non -petitioners vide order dated 8.8.2008 and this order has been challenged in S.B. Cr. Revision Petition No. 1292 of 2008 as mentioned above. Earlier to it the Family Court rejected the application of the petitioner under Section 311 Cr.P.C. vide order dated 5.5.2008 and this order has been challenged in S.B. Cr. Revision Petition No. 1036 of 2008. The petitioner has also challenged the order dated 19.12.2008 passed by the Family Court Kota requesting the DJ Chittorgarh to recover half of the salary amount monthly from the petitioner pay and send the same to the Court below. This order has also been challenged by the petitioner in Criminal Revision Petition No. 168 of 2009.

(2.) SINCE all the criminal revision petitions have been filed by the petitioner against the non -petitioners against the various orders of the Family Court, all the revision petitions are being heard together and disposed together by this common order.

(3.) THE learned counsel for the petitioner has submitted that the trial Court has seriously erred in passing the order dated 5.5.2008 on the basis of surmises and conjectures due to which total failure of justice has resulted. The impugned order suffered from patent illegalities and misreading of evidence on the face of it. The trial Court has seriously erred in passing the order dated 5.5.2008 upon inference as per its own sweet will which otherwise could not have been drawn if the entire facts and circumstances and evidence on record would have been taken into consideration and appreciated properly.