Mahendra Tiwari vs The State of Madhya Pradesh

This criminal revision has been filed under Section 397, 401 of Cr.P.C. against the order dated 27.5.2014 passed by Additional Sessions Judge, Karera, District Shivpuri in Case No.1071/2011 by which order dated 20.7.2013 passed by JMFC, Karera, District Shivpuri in Case No.1071/2011 been affirmed. By order dated 20.7.2013 the Magistrate has allowed the application filed by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, and has awarded an amount of Rs. 2000/- per month towards rent for separate residence, Rs. 2,00,000/- towards the compensation because of loss of Stridhan and Rs. 1500/- per month for providing food and clothes.

The necessary facts for the disposal of the present revision in short are that an application under Section 12 of Protection of Women from Domestic Violence Act was filed by the respondent against the applicants on the allegation that on 1.6.2009 she was married to the applicant No.1. At the time of marriage, the father of the respondent had given an amount of Rs. 2,00,000/- in cash, one gold chain weighing 1 tola and other articles. Immediately after the marriage the applicant No.1 and his family members started demanding Rs. 1,00,000/-, fridge and one motorcycle and because of non- fulfillment of their demand they used to harass and beat her and on one occasion the applicant No.1 had even tried to strangulate her. On 8.8.2010, the applicants left her in her parents house. She is unable to maintain herself and do not want to reside in her parental house and it was further alleged that by leveling false allegation a petition for divorce has been filed by the applicant No.1. Therefore, she prayed for an amount of Rs. 5000/- per month towards the rent and an amount of Rs. 2,00,000/- towards the compensation.

The applicant filed his reply and denied the allegations. He stated that no dowry was given at the time of the marriage and after marriage he was informed by the respondent that she has been married against her wishes and she has not accepted him as her husband. She used to talk excessively on mobile phone and in case any objection she used to abuse the applicants. The respondent also used to eat Gutkha and tobacco. At the request of the parents of the respondent, she was sent to her parents house along with his younger brother Saurabh and cousin brother Arjun on 31.7.2009. On 1.8.2009, the brother of the respondent and others killed the younger brother of the applicant, Saurabh.

The Trial Magistrate after recording the evidence and hearing the parties allowed the application and awarded an amount of Rs. 2000/- per month towards the rent for separate residence of the respondent, an amount of Rs. 2,00,000/- by way of compensation which was given by the father of the respondent at the time of marriage as well as an amount of Rs. 1500/- per month for the food and clothes of the respondent.

Being aggrieved by the order of the Magistrate, the applicants filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act which too has suffered dismissal. Accordingly, this revision under Section 397, 401 of Cr.P.C. has been filed.

It is submitted by the counsel for the respondent that the applicants have not paid the rent as well as an amount of Rs. 1500/- per month. It is submitted that only an amount of Rs. 50,000/- has been deposited by the applicants in compliance of the interim order dated 12.12.2014. It is further submitted by the counsel for the respondent that the execution proceedings for the recovery of Rs. 2000/- and 1500/- per month is pending and warrants of arrest has been issued against the applicants.

It is submitted by the counsel for the applicants that the courts below have not appreciated the evidence in proper perspective which has come on record. In fact, it is the respondent who was not willing to reside with the applicant No.1. The respondent was not interested in marring the applicant No.1 but under the pressure of her parents she somehow agreed for the marriage with the applicant No.1. Her behavior towards the applicant was cruel. It is further submitted that the respondent is not entitled for the relief which was sought by her by filing an application under Section 12 of Protection of Women from Domestic Violence Act. It is submitted by the counsel for the applicants that the respondent had lodged a false report for offence under Section 498-A of IPC and the police after completing the investigation had come to a conclusion that no offence is made out and accordingly, the final report/closure report was filed. It was further submitted by the counsel for the applicants that the divorce proceedings are pending and the application under Section 12 of Protection of Women from Domestic Violence Act has been filed by way of counterblast.

Per contra, it is submitted by the counsel for the respondent that both the courts below have given concurrent findings of fact and the same may not be interfered with as the findings recorded by the courts below do not suffer from any perversity.

Heard the learned counsel for the parties.

It is clear from the order dated 20.7.2013 passed by the Magistrate as well as the judgment dated 27.5.2014 passed by the Appellate Court, the courts below have considered the evidence in detail. It appears that when Saurabh, the younger brother of the applicant No.1 went to leave the respondent in her parents house, he was killed. The applicants have a suspicion that the brother of the respondent and others are responsible for the murder of Saurabh and accordingly they are being prosecuted for the same.

So far as the filing of the final/closure report by the police for offence under Section 498-A of IPC is concerned, suffice it to say that unless and until the said closure report is accepted by the Court of competent jurisdiction after giving an opportunity of hearing to the complainant, it cannot be said that the allegations made by the respondent in her report for offence under Section 498-A of IPC were false. Since the applicants are not in a position to apprise this Court that whether the closure report has been accepted or not, therefore, the applicant cannot take advantage of the filing of the closure report by the police for offence under Section 498- A of IPC.

So far as the petition for divorce is concerned, again the counsel for the applicants are not in a position to submit that whether the same is pending or has been decided.

Both the Courts below after appreciating the evidence have given a concurrent finding of fact that it appears that the applicants have a suspicion that Saurabh, the brother of the applicant No.1 has been killed by the brother of the respondent, therefore, they ousted the respondent from her matrimonial house. Unless and until it is found that the conduct of the respondent was cruel towards the applicants or she is residing separate without any reasonable reason, she is entitled for protection under the Protection of Women from Domestic Violence Act. The only allegations made by the applicants in their reply was that she was not interested in marrying the applicant No.1 and in fact she had married him under the pressure of her parents and she used to eat tobacco and Gutkha and her behavior towards her in-laws was not good. On the contrary, the allegations made by the respondent are that she was being harassed by the applicants for demand of dowry. It is well established principle of law that in exercise of powers under Section 397, 401 of Cr.P.C., this Court should not interfere with the findings of fact recorded by the courts below unless and until the same are found perverse or contrary to record. This Court do not find any perversity in the findings recorded by the courts below, therefore, this Court is of the view that the courts below did not commit any mistake in holding that the respondent is not residing separately without any sufficient reason.

So far as the question of amount awarded by the Trial Court is concerned, this Court does not find it to be inappropriate in the light of the inflation as well as the price index.

Considering the totality of the circumstances, this Court is of the view that this revision sans merits and is hereby dismissed.