Dinesh Rajak vs Smt. Rajni Bai

N.K. Gupta, J.—Heard the learned counsel for the parties finally. By this criminal revision the applicant has challenged the order dated 18.12.2012 passed in Criminal Revision No. 38/2012 by the learned third Additional Sessions Judge, Seoni whereby the order dated 5.3.2012 passed by the JMFC Seoni in MJC No. 135/2010 was reversed and maintenance of Rs. 1,000/- was granted to the respondent.

The brief facts of the case are that the respondent has moved a complaint u/s 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to "Special Act") that the applicant was in habit to assault her from time and on 24.5.2008 the applicant as well as his family members assaulted her for demand of a motorcycle and she was ousted. Similarly some allegations about the violence committed by the applicant are also quoted, and therefore maintenance of Rs. 3000/- per month was demanded.

In reply the applicant denied all the allegations made by the respondent.

After considering the evidence adduced by the parties, the learned JMFC found that the respondent could not establish her case of Section 12 of the Special Act, and therefore the complaint was dismissed. In criminal revision, the learned Third Additional Sessions Judge set aside the order of the trial Court and granted maintenance of Rs. 1,000/- per month in favour of the respondent.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, if the evidence adduced by the complainant/respondent is considered, then she made omnibus allegations about the assault and dowry demand. Rajani (PW-1), Vinita (PW-2), Vijay (PW-3) etc. were examined in support of the respondent. They could not make any specific allegation for a particulate date. It was mentioned in the complaint that the respondent was called by the applicant on 24.5.2008 and thereafter she was assaulted by the applicant and his family members for demand of a motorcycle. She had also stated that a report was lodged on 25.5.2008 at Police Station Kanhiwada and thereafter a compromise took place on 27.5.2008. The learned JMFC has rightly found that if the wife was residing with her parents, then there was no need to the applicant to call her along with her parents for demand of a motorcycle and to assault her. The complainant could neither prove the FIR lodged at Police Station Kanhiwada nor the compromise paper could be proved. Also there is material contradiction visible in the statements of Rajani and Vinita and Vijay. Vinita and Vijay have stated that they went to bring the respondent Rajani from the house of her husband and at that time she was assaulted and demand of motorcycle was made, whereas the respondent had pleaded that she was specially called to the house of the applicant on that particulate date and thereafter she was beaten by the applicant and his family members before her parents. Under such circumstances, the trial Court has rightly observed that no act of harassment could be proved by the complainant.

The learned Additional Sessions Judge considered the conduct of the parties after a decree u/s 9 of the Hindu Marriage was passed. When the complaint was filed with the set of particulate facts, then it is for the complainant to prove such facts before the trial Court and relief can be based upon the facts pleaded in the complaint or application. If there was a harassment done by the applicant subsequent to filing of the complaint, then a fresh complaint could have been filed or such ground should have been added in the complaint by way of modification, but nothing has been done by the complainant/respondent for modification in the complaint. Under such circumstances, the conduct of the parties after passing of a decree u/s 9 of the Hindu Marriage Act could not be considered in the present complaint. The learned Additional Sessions Judge has committed an error to consider the subsequent event which was not pleaded at all. The trial Court has rightly found that the respondent had no reason to reside with her parents and to get the maintenance without residing with the applicant. Consequently, the order passed by the learned Additional Sessions Judge appears to be perverse, which cannot be maintained.

On the basis of the aforesaid discussion, the revision filed by the applicant Dinesh Rajak is hereby allowed. The order dated 18.12.2012 passed by the learned Additional Sessions Judge, Seoni is hereby set aside, whereas the order dated 5.3.2012 passed by the learned trial Court, Seoni in MJC No. 135/2010 is hereby confirmed. A copy of this order be sent to both the courts below along with their records for information and compliance.