SHANTI DEVI Vs. STATE OF RAJASTHAN AND ANR.

JUDGEMENT

(1.) - By the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter), the petitioner has challenged the order dated 6.9.2000 passed by Judge, Family Court, Jodhpur (for short 'the family Court' hereinafter) in Criminal Case No. 79 of 1997 whereby the Family Court dismissed the application filed by the petitioner under Sec. 127 of the Code seeking enhancement of maintenance.

(2.) I have heard learned counsel for the parties. Perused the order impugned.

(3.) The petitioner earlier filed an application under Sec. 125 of the Code seeking maintenance in the year 1978 being Criminal Misc. Case No. 150 of 1978, which came to be decided on 19.6.1979 and petitioner was granted maintenance at the rate of Rs. 140.00 per momn. Apart from the petitioner, her daughter Asha Devi was also granted maintenance at the rate of Rs. 60.00 per month. The order granting maintenance to Asha Devi was challenged by Non-Petitioner No. 2 before this Court in S.B. Criminal Misc. Application No. 265 of 1981. The order dated 19.61979 to the extent of grant of maintenance in favour of Asha Kumari at the rate of Rs. 60.00 per month was set aside by this Court. From perusal of the order passed in S.B. Criminal Misc. Application No. 265 of 1981 reported in 1988 (1) WLN 354, it appears that earlier decree for judicial separation in Hindu Marriage Case No. 67 of 1970 was passed on 13.4.1972 by the Civil Judge (Sr. Div.), Akola. The very Court passed the decree dated 2.4.1979 in the divorce petition No. 96 of 1978. The court while passing the divorce decree, held that Non-Petitioner No. 2 had no cohabitation with the petitioner since their marriage, and the child is not that of Non-Petitioner No. 2. While deciding issue No. 4 therein, the Court held that petitioner had sexual intercourse with any other person other than her husband Non-Petitioner No. 2. Before the Family Court, the petitioner has failed to prove the income of Non-Petitioner No. 2. She only stated that her husband might be earning Rs. 4000.00 per month. On the contrary, Non-Petitioner No. 2 has produced various documents before the Family Court including the document of his treatment. He has been suffering from high blood pressure and is also an old man. Relying on the evidence of Non-Petitioner No. 2 and the fact that the burden was on the petitioner to establish the income of Non-Petitioner No. 2, which the petitioner failed to establish, the Family Court, dismissed the application.