RAJESH KUMARI Vs. YOGENDRA SINGH

JUDGEMENT

(1.) This revision petition has been filed by the petitioner Smt. Rajesh Kumari, against the order dated June 30, 2008, of Judge, Family Court, Kota in Criminal Case No. 852 or 2003 whereby the application under Section 125, Cr.P.C. filed by the petitioner was rejected.

(2.) Brief facts giving rise to this revision petition are that the petitioner was married with the respondent on January 17, 2001 with whom she lived about some months thereafter the matrimonial environment started deteriorating because of greedy attitude of in-laws who start demanding dowry in the form of money and other items which resulted in expulsion of the petitioner from her husband's house and from March 16, 2003 the petitioner has been living at the house of her father and now her father also expired and her mother is also not keeping good health and the petitioner is not having any source of income thus the hardship and problem of keeping soul and body together is at the climax of its worst. In these circumstances the petitioner filed application under Section 125, Cr.P.C. demanding maintenance from her husband in the sum of Rs. 5,000 per month, who is very much in the capacity of making payment as he is running a shop of photography and earning Rs. 10,000/- and odd from the shop whereas he is living an easy life without any burden of liability. The respondent stated in his reply that the petitioner wife is living apart with her parents without any cogent reason so she is not entitled to any maintenance. It is stated that attempt was made to bring the parties for settlement of dispute and to bring them to a point of compromise but all failed. After hearing both the parties, the Judge, Family Court vide his order dated June 30, 2008 dismissed the application under Section 125, Cr.P.C. Hence this revision petition.

(3.) The learned Counsel for the petitioner submitted that the Judge, Family Court rejected the application on the ground that the petitioner could not prove that she was being harassed for dowry demand and she was expelled by her husband and the claim under Section 9 of the Hindu Marriage Act in which she did not file the reply and in support of her application under Section 125, Cr.P.C. she could not prove cogent reasons justifying her living separately. In the application the petitioner stated that the behaviour of the respondent towards her was cruel and he gave beating to her. Question of giving reply to the claim under Section 9 of the Hindu Marriage Act is virtually that was an ex parte decree because the husband lives in Bundi and the suit was also filed at Bundi and threats were given to her thereby she was terrorised and could not gather courage to go to Bundi to face the trial and as a result of which ex parte decree against her was passed by the Trial Court. Against the said ex parte decree the petitioner filed appeal which is pending before this Court. The petitioner gave out that apart from the ex parte decree passed against the petitioner, still she is entitled to maintenance from her husband in view of judgment of Yashwant Shilpkar v. Sanita Shilpkar & Anr, 2003 CrLJ 274. In this case it was held that even if earlier decree for restitution of conjugal rights is not complied with by the wife, a divorced wife has right to claim maintenance from husband. But the Judge, Family Court has not considered all these arguments and rejected the application. Thus the order of the Family Court rejecting the application deserves to be set aside.