successfully proved that she was legally wedded wife of the
respondent - Tej Ram, who threw her out of house after giving
beatings. It also stands proved on record that out of their wedlock a
baby child was born. Hence, this court has no hesitation to conclude
that petitioner-Prem Lata was able to prove her case by leading
cogent and convincing evidence that she was legally wedded wife
of the respondent - Tej Ram and they lived under one roof at Haripur
and out of their wedlock a child was born and she was subjected to
domestic violence by her husband, as such she is entitled for
maintenance and rent of residence. PW1 stated that respondent
works as labourer and earns Rs. 12,000/- per month. Since,
respondent has failed to refute the aforesaid statement of PW1
before the Courts below, it can be rightly presumed that respondent
has sufficient source of income keeping in view the fact that he is
able bodied person.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 25 of 2011.
Date of Decision: 16.08. 2016.
Tej Ram
V
Prem Lata
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation: 2017 CRLJ(NOC)66 HP
1. The instant criminal revision petition filed under Sections
397 and 401 of Cr.P.C. is directed against judgment dated
30.11.2010, passed by learned Sessions Judge, Kullu, District Kullu in
Criminal Appeal No. 8 of 2009, affirming the judgment dated
29.1.2009 passed by learned Judicial Magistrate 1st Class, Manali in
Criminal Case No. 310-I/08, whereby learned Trial Court below while
allowing the application preferred on behalf of petitioner - Smt. Prem
Lata filed under Section 12 of the Protection of women for Domestic
Violence Act, 2005 (here-in-after referred to as the 'Act'), awarded
maintenance of Rs.1200/- per month and Rs.700/- per month as rent
of the residence. For the sake of convenience, the parties as referred
to in the judgment of the trial Court has been referred as such.
2. Briefly stated facts as emerged from the pleadings are
that petitioner filed an application under Section 12 of the Act,
stating therein that she is legally wedded wife of the respondent.
Perusal of the contents contained in application under Section 12 of
the Act suggests that marriage was solemnized on 26.11.2007 and
thereafter both the parties lived under one roof as husband and wife
at village Haripur, Tehsil Manali, District Kullu and out of their wedlock
a daughter, namely, Kaushlaya was born on 17.11.2008. As per
petitioner, during her pregnancy, the respondent used to threaten
her to kill her unborn child and ousted her from the house after gave
beatings to her. Due to aforesaid ill behavior of her husband, she was
compelled to take shelter in her parents’ house. In the aforesaid
background she moved an application under Section 12 of the Act,
praying therein for monthly maintenance as well as rent for separate
residence. Respondent while filing reply to the petition stated that
petitioner is not his legally wedded wife and there is no question of
living together. He further stated that petitioner is married to one
Joginder, r/o village Simsa, Tehsil Manali, District Kullu and the
petitioner has filed the application in order to harass him.
3. Petitioner by way of rejoinder while denying allegation
contained in reply asserted that she had moved an application
before Pradhan, Gram Panchayat, Haripur and Gram Panchayat
taking cognizance of the averments made in the application
summoned both the parties with a view to explore the possibility of
amicable settlement, if any, between the parties, however,
Petitioner’s husband remained adamant not to take her to house.
Since, no amicable settlement could take place between the
parties, Pradhan, Gram Panchayat referred the application to Police
Post, Prini where both the parties were summoned and a compromise
was effected between the parties on 14.9.2008. In the aforesaid
background, petitioner filed an application, as referred to here-inabove,
in the Court of Judicial Magistrate Ist Class, Manali, District
Kullu, which was ultimately allowed vide order dated 29.01.2009,
whereby, respondent was directed to pay an amount of Rs. 1200/- as
maintenance and Rs.700/- per month as rent of the residence.
4. Being aggrieved and dis-satisfied with the order dated
29.1.2009 passed by Judicial Magistrate Ist Class, Manali, District Kullu,
respondent filed an appeal in the Court of learned Sessions Judge,
Kullu, District Kullu, which came to be registered as Criminal Appeal
No. 8 of 2009, however, learned Sessions Judge, Kullu, District Kullu, on
the basis of record available, dismissed the appeal and upheld the
order passed by learned Judicial Magistrate Ist Class, Manali, District
Kullu. Hence, present Criminal Revision Petition before this Court
laying challenge to the impugned judgment passed by Sessions
Judge, Kullu, H.P.
5. Shri Naveen Bhardwaj, counsel representing the
petitioner herein, vehemently argued that order passed by both
the Courts below granting maintenance and rent to the
respondent herein is not sustainable as the same is not based on
correct appreciation of law and the same deserves to be quashed
and set aside. Mr. Bhardwaj further contended that bare perusal of
the impugned orders passed by the Courts below suggests that
same are based upon surmises and conjectures without there
being any material on record. Mr. Bhardwaj forcefully contended
that both the Courts below have not acknowledged the fact that
petitioner-Tej Ram wife was married to another person, namely,
Joginder and living with him and as such petition filed under Section
12 of the Act was not maintainable. During arguments having been
made on behalf of the petitioner herein, Mr. Bhardwaj also made this
Court to travel through the statements of the witnesses to
demonstrate that Courts below have not read evidence in its right
perspective and has wrongly held petitioner herein liable to
grant maintenance as well as rent to the respondent herein. Mr.
Bhardwaj invited the attention of this Court to the Statement of RW2,
who stated that Prem Lata is married to one Joginder and not to the
Tej Ram. Mr. Bhardwaj also stated that a bare perusal of the
statement made by the petitioner herein suggest that there is no
violence on his part, rather both the Courts have failed to take note
of overwhelming evidence available on record clearly establishing
that respondent herein was married to another person Joginder and
had been living with her during filing of the application. While
concluding his arguments, Mr. Bhardwaj forcefully contended that
both the Courts below have fallen in grave error in not appreciating
the fact that petitioner herein is a labourer and is not earning more
than Rs.15,00/- per month and he won't be in a position to pay
maintenance and rent of residence in terms of orders passed by both
the Courts below. In the aforesaid background, Mr. Bhardwaj prayed
for quashing of the impugned order passed by Courts below.
6. Mr. Peeyush Verma, counsel representing the respondent
herein supported the judgments passed by both the Courts below
and prayed for dismissal of the present revision petition being devoid
of merit. Mr. Verma strenuously argued that bare perusal of the orders
passed by both the Courts below suggests that same are based
upon the correct appreciation of the evidence on record and no
interference whatsoever of this Court is warranted in the facts and
circumstances of the present case. Mr. Verma further contended
that it stands duly proved that relationship between the parties as
husband and wife and a child was born on 17.11.2008 out of their
wedlock, whose name stands registered with the Registrar of Death
and Birth Ex.PW5/A and as such arguments having been made by
counsel representing the petitioner herein (Tej Ram) deserves outrightly
rejection. He also invited the attention of this Court to
Ex.PW3/B, a certificate to demonstrate that name of husband of
Prem Lata has been clearly mentioned as Tej Ram. Mr. Peeyush
Verma also stated that this Court has very limited jurisdiction under
Section 397 (1) to re-appreciate the evidence especially when the
Courts below has recorded concurrent findings on the basis of
evidence adduced on record by the respective parties. The reliance
has also been placed on the following Hon'ble Apex Court
judgments:-
State of A.P. versus Rajagopal Rao (2000) 10 SCC 338.
“4. The High Court in exercise of its revisional power has
upset the concurrent findings of the courts below without
in any way considering the evidence on the record and
without indicating as to in what manner the courts below
had erred in coming to the conclusion which they had
arrived at. The judgment of the High Court contains no
reasons whatsoever which would indicate as to why the
revision filed by the respondent was allowed. In a sense, it
is a non-speaking judgment.”
State of Kerala versus Puttumana Illath Jathavedan (1999)
2 SCC 452
“Having examined the impugned Judgment of the High
Court and bearing in mind the contentions raised by the
learned counsel for the parties, we have no hesitation to
come to the conclusion that in the case in hand, the
High Court has exceeded its revisional jurisdiction. In Its
revisional jurisdiction, the High Court can call for and
examine the record of any proceedings for the purpose
of satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order. In other
words, the jurisdiction is one of Supervisory Jurisdiction
exercised by the High Court for correcting miscarriage of
justice. But the said revisional power cannot be equated
with the power of an Appellate Court nor can it be
treated even as a second Appellate Jurisdiction.
Ordinarily, therefore, it would not be appropriate for the
High Court to re-appreciate the evidence and come to
its own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as
the Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tentamount to gross miscarriage of justice. On
scrutinizing the impugned Judgment of the High Court
from the aforesaid stand point, we have no hesitation to
come to the conclusion that the High Court exceeded its
jurisdiction in interfering with the conviction of the
respondent by re-appreciating the oral evidence. The
High Court also committed further error in not examining
several items of evidence relied upon by the Additional
Sessions Judge, while confirming the conviction of the
respondent. In this view of the matter the impugned
Judgment of the High Court is wholly unsustainable in law
and we, accordingly set aside the same. The conviction
and sentence of the respondent as passed by the
Magistrate and affirmed by the Additional Sessions Judge
in appeal is confirmed. This appeal is allowed. Bail bonds
furnished stand cancelled. The respondent must
surrender to serve the sentence.”
7. I have heard learned counsel for the parties as well
carefully gone through the record of the case.
8. True, it is that this Court has very limited powers under
Section 397 Cr.P.C. while exercising its revisionary jurisdiction but in
the instant case, this Court solely with a view to ascertain that the
judgments passed by learned Courts below are not perverse and
same are based on correct appreciation of the evidence on record,
undertook an exercise to examine the case.
9. As far as scope of power of this Court while exercising
revisionary jurisdiction under Section 397 is concerned, the Hon’ble
Apex Court in Krishnan and another Versus Krishnaveni and another,
(1997) 4 Supreme Court Case 241; has held that in case Court
notices that there is a failure of justice or misuse of judicial mechanism
or procedure, sentence or order is not correct, it is salutary duty of
the High Court to prevent the abuse of the process or miscarriage of
justice or to correct irregularities/ incorrectness committed by inferior
criminal court in its judicial process or illegality or sentence or order.
The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind
conferring the revisional power under Section 397 read
with Section 401, upon the High Court is to invest
continuous supervisory jurisdiction so as to prevent
miscarriage of justice or to correct irregularity of the
procedure or to mete out justice. In addition, the
inherent power of the High Court is preserved by
Section 482. The power of the High Court, therefore, is
very wide. However, the High Court must exercise such
power sparingly and cautiously when the Sessions
Judge has simultaneously exercised revisional power
under Section 397(1). However, when the High Court
notices that there has been failure of justice or misuse
of judicial mechanism or procedure, sentence or order
is not correct, it is but the salutary duty of the High
Court to prevent the abuse of the process or
miscarriage of justice or to correct irregularities/
incorrectness committed by inferior criminal court in its
judicial process or illegality of sentence or order.”
10. Careful perusal of evidence led on record leaves no
doubt that petitioner is the legally wedded wife of the respondent -
Tej Ram. As per Petitioner, her marriage was solemnized on 26.11.2007
and thereafter they lived under one roof at village Haripur, Tehsil
Manali, District Kullu, H.P. and out of their wedlock she gave birth to a
daughter on 17.11.2008. However, aforesaid factum of marriage as
well as birth of daughter was specifically denied by the respondent.
Petitioner in her application stated that during her pregnancy
respondent gave beatings to her and threatened to kill her unborn
baby and she was forcibly ousted from the house. Thereafter, she
moved an application before Pradhan, Gram Panchayat, Haripur
with a view to settle the matter amicably but the respondent did not
agree to take the petitioner to house and, as such, Pradhan, Gram
Panchayat referred the matter to the Police Post, Prini where both the
parties entered into compromise dated 14.9.2008. Since respondent
failed to take the petitioner to house, she was compelled to file an
application Under Section 12 of the Act as referred here-in-above.
Perusal of reply filed by the respondent clearly suggests that he
denied that petitioner is legally wedded wife and as such there is no
question of living together. Respondent also denied of extending
threats to petitioner as claimed by the petitioner in the application
under Section 12 of the Act.
11. Petitioner in order to prove her case examined herself as
PW1, in which she stated that her marriage was solemnized on
26.11.2007 with the respondent and lived under one roof at VPO
Haripur, Tehsil Manali, District Kullu. She also stated that during
pregnancy her husband gave beating and threatened to kill her
unborn baby. She also stated that she presented application before
Pradhan, Gram Panchayat, Haripur but respondent refused to
resolve the matter amicably. She further stated that Pradhan, Gram
Panchyat referred the application to the Incharge, Police Post, Prini,
where parties entered into a compromise on 14.9.2008 but despite
compromise her husband neither took her to house nor provided any
maintenance. She further stated that at present she resides with her
mother. Bare perusal of cross-examination conducted on this witness
clearly suggests that nothing contrary to what has been stated in
examination-in-chief. It is safely concluded that respondent was
unable to shatter the testimony of PW1. In her cross-examination, she
specifically denied that she is not married to respondent and she is
married to one Joginder, resident of village Simsa. She also denied
the suggestion put to her that she never resided with the respondent,
rather self stated that she resided with the respondent.
12. PW2 Rakesh Kumar also stated that he recognizes the
aggrieved person and the respondent. He further stated that he is
brother-in-law of the petitioner. It also came in his statement that
aggrieved person and respondent are husband and wife in relation,
who resided at Haripur. He specifically stated that he used to visit
them and they used to visit him. He also stated that petitioner and
respondent had quarrel and thereafter petitioner started residing with
her mother. PW2 further stated that whenever he visited the house of
respondent, he saw respondent was quarreling with aggrieved
person. Perusal of cross-examination conducted on this aforesaid
witness also suggests that respondent was unable to shatter the
testimony of PW2, who has been very very consistent and candid in
stating the facts. Careful perusal of the cross-examination conducted
on this witness clearly suggests that he stuck to his statement made in
examination-in-chief. PW2 in his cross-examination also asserted the
factum of marriage of aggrieved person with the respondent, which
was soleminised at place Dungri, where about ten people attended
the marriage. He also identified the respondent being a resident of
Siraj. Close scrutiny of the statement given by PW2 clearly suggests
that he fully corroborated the version put-forth by PW1 in her
application as well as statement made before the Courts below. It
clearly emerges from the statements of PW1 and PW2 that before
living separately, petitioner was residing with her husband Shri Tej
Ram.
13. PW3 Smt. Bina, Anganwari Worker also stated that she
recognized aggrieved person as well as respondent and they are
husband and wife in relation. She further stated that during her
pregnancy, the aggrieved person visited the Anganbari and she got
herself registered there for nutrient food. PW3 also tendered into
evidence the copy of attendance register of the aggrieved person
as Ex.PW-3/A and stated that same are correct as per original. Copy
of attendance register Ex.PW3/A clearly suggests that Prem Lata is
recorded as wife of respondent (Tej Ram), which clearly corroborates
the statements of PW1 and PW2.
14. PW4 Devia Ram, M.C., Police Post, Prini, Tehsil Manali,
Distt. Kullu stated that Prem Lata had moved an application before
the Pradhan, Gram Panchayat, Haripur qua ousting of her from
matrimonial house. He further stated that Pradhan, Gram Panchyat
forwarded the application to Police Post, Prini, wherein aggrieved
person Prem Lata and Tej Ram visited the Police Post, Prini alongwith
other persons and compromise was effected on 14.09.2008 and
thereafter no proceedings were carried by the police. Statement of
PW4 corroborates the statement of PW1 in which she has stated that
she had reported the matter to Pradhan, Gram Panchayat, who
further forwarded the complaint to Police Post, Prini and ultimately
compromise was effected on 14.09.2008.
15. PW 5 Narinder Kumar, Assistant Secretary, Panchayat
Soyal, Tehsil Manali, District Kullu came present in Court alongwith
requisitioned record i.e. certified copy of certificate Ex. PW5/A and
stated that this birth certificate is correct as per original record. In his
cross-examination, he stuck to his statement made in the
examination-in-chief. Perusal of Ex.PW5/A suggest that Kaushalya
Devi was born on 17.11.2008 at village Haripur and her father and
mother names are recorded as Tej Ram and Prem Lata. Ex.PW5/A
clearly corroborates the statement of PW1 in which she stated that
she gave birth to a baby on 17.11.2008. The recording of the name of
Tej Ram as father and Prem Lata as mother in the register establish
that they are husband and wife in relation.
16. Careful perusal of the statements of aforesaid witnesses
clearly suggests that petitioner is wife of respondent and after her
marriage they resided as husband and wife under one roof at village
Haripur. It also stands proved that she gave birth to a child on
17.11.2008 out of the aforesaid wedlock. Respondent while
appearing as RW1 stated that he resides with his mother and his
mother works as servant with Lovekishore Gupta. He also stated that
he does not recognize aggrieved person personally and she has filed
present case falsely against him. He stated that he works as labourer
and Prem Lata is married to one Joginder, r/o Simsa and he never
resided with the petitioner. In his cross-examination stated that he
had not been called at Police Post, Prini and no compromise was
effected.
17. Interestingly, careful reading of the aforesaid statement
of RW1 clearly suggests that RW1 has not disclosed true facts to the
Court, rather his statement is self contradictory and as such cannot
be relied upon. In his examination-in-chief he stated that he does not
recognize the aggrieved person Prem Lata but In his crossexamination
he stated that he was not called at Police Post, Prini and
no compromise was affected, whereas PW4 Devia Ram categorically
stated that Prem Lata and Tej Ram were summoned to Police Post,
Prini alongwith other persons on 14.9.2008, where they effected
compromise. Statement of PW4 stands fully corroborated by
statement of PW1 wherein she categorically stated that compromise
could not be effected in Gram Panchayat, then Pradhan of the
Gram Panchayat referred the matter to the Police Post, Prini and
compromise was effected on 14.9.2008 at Police Post, Prini. This Court
has no reason to disbelieve the testimony of PW4, who is an
independent witness, rather this Court after perusing the statement of
RW1 sees sufficient reasons to conclude that statement of RW1 is not
trustworthy and confidence inspiring and as such same has been
rightly not appreciated by the Courts below. RW2 Roop Chand also
stated that he recognized Prem Lata and she resides with her mother.
RW2 is maternal cousin of the petitioner. He stated that Prem Lata is
married with one Joginder. RW2 further stated that Tej Ram resides
with her mother and he is not married.
18. Careful perusal of statement made by RW2 clearly
suggests that it will not be of any help to the RW1 since he did not
utter a word with regard to the factum of residing of the petitioner
with respondent as wife. RW2 only stated that Prem Lata is married to
one Joginder but he did not utter a word with regard to residing of
Prem Lata with RW1.
19. Conjoint reading of evidence led on record by
aggrieved person Prem Lata clearly establish that she was married to
respondent, namely, Tej Ram and she also gave birth to a baby
daughter on 17.11.2008, whose name stands mentioned with the
Registrar of Death & Birth i.e. Ex.PW5/A. Further perusal of Ex. PW5/A
clearly establishes that name of the father and mother of child stands
mentioned as Tej Ram and Prem Lata. All the witnesses adduced on
record by petitioner corroborated version of the petitioner and have
been candid and straightforward in making their depositions.
Whereas, respondent has not been able to extract anything contrary
in their cross-examination. RW1 while deposing before Court below
has not been able to prove that petitioner-Prem Lata was not his
legally wedded wife and no marriage was solemnised on 26.11.2007.
Though, RW1 in his statement, stated that no marriage was
solemnized with the petitioner and he does not recognise her but he
also stated in her statement that petitioner is married to one
Joginder, resident of Simsa, which itself falsify the earlier part of the
statement given by RW1, wherein he stated that he does not
recognize the petitioner. Similarly, RW2 stated that petitioner is
married to one Joginder but he nowhere stated that petitioner never
used to reside with RW1 Tej Ram.
20. Close scrutiny of statement of PW1-Prem Lata clearly
establish that she was married to RW1-Tej Ram on 26.11.2007 and she
resided with him in the house of one Lovekishore Gupta of Haripur.
She also proved that she was ousted from the house during her
pregnancy and respondent used to give beatings to her. Aforesaid
factum of beatings and mis-behaviour stands corroborated with the
statement of PW2 Rakesh Kumar. He categorically stated that he
used to visit the house of petitioner and respondent and respondent
oftenly use to quarrel with the petitioner. Factum of giving birth to
daughter on 17.11.2008 duly stand proved on record with the
production of Ex.PW5/A i.e. Death & Birth Register, wherein,
Kaushlaya Devi, a female child was born on 17.11.2008 at village
Haripur is recorded as daughter of Tej Ram and Prem Lata. Similarly,
PW1 has been able to prove that before filing the present application
under Section 12 of the Act, she reported the matter to the Pradhan,
Gram Panchayat, who summoned the parties for amicable
settlement but respondent remained adamant in not taking her to
house. Similarly, factum with regard to effecting of compromise
dated 14.9.2008 stands duly proved on record with statement of PW4
M.C. Devia Ram, who categorically stated that petitioner had
moved an application against her husband Tej Ram in the Gram
Panchayat, Haripur and thereafter Pradhan referred the application
to Police Post, Prini. He categorically stated that Tej Ram and Prem
Lata alongwith other persons came present on 14.9.2008 and they
effected the compromise.
21. Hence, it can be safely concluded that PW1-Prem Lata
successfully proved that she was legally wedded wife of the
respondent - Tej Ram, who threw her out of house after giving
beatings. It also stands proved on record that out of their wedlock a
baby child was born. Hence, this court has no hesitation to conclude
that petitioner-Prem Lata was able to prove her case by leading
cogent and convincing evidence that she was legally wedded wife
of the respondent - Tej Ram and they lived under one roof at Haripur
and out of their wedlock a child was born and she was subjected to
domestic violence by her husband, as such she is entitled for
maintenance and rent of residence. PW1 stated that respondent
works as labourer and earns Rs. 12,000/- per month. Since,
respondent has failed to refute the aforesaid statement of PW1
before the Courts below, it can be rightly presumed that respondent
has sufficient source of income keeping in view the fact that he is
able bodied person.
22. Consequently, in view of the aforesaid discussions, there
is no illegality and infirmity in the orders passed by learned Courts
below as such the same are upheld and the present petition is
dismissed being devoid of merit.
(Sandeep Sharma),
Judge.
August 16, 2016
No comments:
Post a Comment