Kamlesh Kushwaha vs Ramkali Bai

B.D. Rathi, J.—Heard on the question admission.

This Criminal Revision has been preferred u/s 397/401 of the Code of Criminal Procedure being aggrieved by the order dated 19.02.2010 passed by the II Additional Sessions Judge (Fast Track Court), Ganjbasoda in Criminal Revision No. 29/09 whereby order dated 10.12.2008 passed by the Judicial Magistrate First Class, Ganjbasoda, in M.J.C. No. 52/2007 was set aside and it was directed by the revisional court that respondent Ramkali Bai is entitled to get Rs. 700/- per month towards maintenance from petitioner Kamlesh.

In short, facts of the case are that respondent Ramkali Bai had preferred one Criminal M.J.C. No. 52/2007 u/s 125 of Cr.P.C. before the Court of JMFC, Ganjbasoda for seeking relief that order be passed in her favour and grant Rs. 3,000/- per month towards maintenance against petitioner Kamlesh and his father Balram. After taking into consideration the evidence of both the parties and giving opportunity of hearing to them, this application preferred u/s 125 of Cr.P.C. was dismissed by the trial court on 10.12.2008 on the ground that respondent Ramkali Bai was deliberately living separately and she had not obeyed the judgment and decree passed against her for restitution of conjugal rights.

In Criminal Revision, it was held by the revisional court that trial court fell in error in considering the decree of restitution of conjugal rights and the theory of separate living of Ramkali Bai while deciding the application u/s 125 of Cr.P.C.

On perusal of the entire record, it seems that one copy of the FIR Ex. P-1 was filed by Ramkali Bai in which omnibus allegations were levelled against the petitioner Kamlesh. When she was residing in her parental house, this FIR was lodged after one month on 06.09.2006 but what was the fate of that FIR had not been produced by Ramkali Bai during trial. Whether any Criminal Case registered against petitioner Kamlesh or not and if registered then what was the result of that Criminal Case was also not produced by Ramkali Bai and on the contrary document of judgment against Ramkali Bai dated 16.11.2007 passed in RCS No. 451-A/07 by the Principal Judge, Family Court, Bhopal Ex. D-1 and decree Ex. D-2 were produced by petitioner Kamlesh Kushwah in support of his oral evidence.

In view of the documents produced by petitioner Kamlesh Kushwah, it is clear that Ramkali Bai is deliberately residing separately from the petitioner, therefore, she is not entitled to get any maintenance. Accordingly, petition is allowed and the order dated 19.02.2010 passed by the II Additional Sessions Judge (Fast Track Court), Ganjbasoda in Criminal Revision No. 29/09 is hereby set aside confirming the order dated 10.12.2008 passed by the Judicial Magistrate First Class, Ganjbasoda, in MJC No. 52/2007.

It is made clear that if any amount has been paid to the respondent Ramkali Bai in compliance of the order passed by the revisional court that shall not be recoverable from her.