Rajpal vs State of U.P. and Another

R.K. Rastogi, J.—This is an application u/s 482, Cr. P.C. for quashing the proceedings of Criminal Case No. 201 of 2005, Smt. Heero Devi v. Rajpal Criminal Case No. 201 of 2005, u/s 125, Cr. P.C. pending in the court of Family Judge, Meerut.

The facts relevant for disposal of this application are that the complainant opposite party, Smt. Heero Devi filed an application u/s 125, Cr. P.C. against applicant Rajpal with this allegation that her marriage had taken place with Rajpal about thirty years ago and after the marriage she started to reside at her husband''s house and was performing her marital obligations. Rajpal properly behaved with her for some time and thereafter he used to neglect her and she has been ill for a long time, but Rajpal was not making any arrangement for her treatment, nor he provided food to her. He had beat her several times and tried to force her to leave his house. Three issues were born to her out of this wedlock but due to negligence of Rajpal and for want of proper treatment all those issues died, and instead of giving any assistance to her, Rajpal wants to get rid of her. He is employed on the post of Principal of a primary school situate at Dudhali near Chhota Mawana tehsil Mawana district Meerut, and he is earning Rs. 12,000 per month as salary. He was spending entire amount on the families of his two younger brothers, though those families were well-settled and did not require any assistance from Rajpal. The applicant is earning her livelihood by doing labour work in the fields of others but after falling ill she became unable to do labour work and she has been ill for several years and is suffering from the disease of liver, but Rajpal is not maintaining her nor providing any medical assistance to her. Previously her brothers Mathura Prasad and Virendra Singh Verma were providing assistance to her, but now they too are unable to provide any assistance to her, and when she asked Rajpal to provide food and clothes to her, he stated that he has no money for her. Rajpal is also doing business of money lending and is earning Rs. 6,000 per month. He has also got a plot of 100 Sq. Yards in the area of Nagar Nigam, Meerut worth Rs. one lac. She, therefore, prayed for Rs. 5,000 per month as maintenance from him.

Rajpal filed an objection before the lower court in which he took a plea that Smt. Heero Devi was residing with him in the same house in which he was residing and he was looking after her and she had filed this application under the influence of her brothers and nephew. He had never refused to maintain her and so the application was not maintainable. He also filed certificate issued by Sadhan Sahkari Samiti, Rani Nagla, Hastinapur, Meerut, in which it was stated that the applicant was residing with her husband in the same house. He has also filed extract of voters'' list of the year 2005 in which the applicant Rajpal and Smt. Heero Devi have been shown to be residing in the same house No. 187. He also filed photo copy of ration card in which the names of the applicant Rajpal and Smt. Heero Devi find place. Another certificate issued by Indra Pal Singh, Pradhan of Gram Panchayat Afzalpur alias Rani Nagla tehsil Mawana, Meerut, has been filed in which it has been stated that the applicant was residing with her husband in his house in the village happily. It was further stated that application u/s 125, Cr. P.C. is not maintainable.

The Judge, Family Court after hearing both the parties rejected the above objection of the applicant vide his order dated 23.9.2006. Aggrieved with that order Rajpal has filed this application u/s 482, Cr. P.C. for quashing the proceedings of the case.

Heard learned Counsel for the applicant and learned A.G.A. for the State and perused the papers on record.

The learned Counsel for the applicant submitted before me that it is sufficiently proved from the documentary evidence filed by him that both the parties were residing in the same house and so the application u/s 125, Cr. P.C. was not maintainable. This plea was taken before the learned lower court also. The learned Presiding Officer of the lower court did not agree with the above submission of Rajpal and he referred to certain other documents filed by Heero Devi, one of them is copy of the compromise arrived at between the parties on intervention of the police of Police Station Hastinapur, in which Rajpal had assured the police that he will properly maintain his wife Smt. Heero Devi and will pay Rs. 500 per month as maintenance to her and will also deposit Rs. 10,000 in her name in a bank. The Presiding Officer also referred to three medical prescriptions paper No. 10B, 11B and 12B in respect of treatment of the Heero Devi. He also pointed out that the matter had been referred to Parivar Paramarsh Samiti Samjhauta Kendra, Meerut and a report had been received from that Kendra that wife of Rajpal was subjected to neglect by her husband.

Keeping all these facts into consideration, the Presiding Officer of the lower court had rejected the above objection of the applicant regarding maintainability of the application.

The learned Counsel for the applicant made the same submission before me also alleging that taking into consideration the documentary evidence filed by the applicant it is sufficiently proved that the applicant as well as his wife Smt. Heero Devi are residing in the same house and so the application u/s 125, Cr. P.C. is not maintainable. It is, however, to be seen that the questions whether the applicant is residing alongwith his wife Smt. Heero Devi in the same house or not and whether wife is being subjected to neglect or not are questions of fact. The learned Principal Judge, Family Court was of the view that prima facie there was sufficient evidence of neglect of Smt. Heero Devi by her husband and so application u/s 125, Cr. P.C. was maintainable. It is to be seen that even if the wife is residing with her husband in the same house, she may be subjected to neglect by her husband and in that case the application u/s 125, Cr. P.C. would be maintainable. In the present case, the position is that in the application u/s 125, Cr. P.C., Smt. Heero Devi stated herself to be residing in village Rani Nagla and she also described the opposite party Rajpal as resident of village Rani Nagla, but thereafter it was also stated that at present he is residing at Primary Pathashala Gram Dudhali near Chhota Mawana tehsil Mawana, Meerut, where Rajpal is employed as the Principal. If Rajpal was residing at the school and Smt. Heero Devi was residing at the house, the places of residence of both these persons are different and so the application u/s 125, Cr. P.C. cannot be treated to be not maintainable on the ground of so-called residence of both the parties in the same house.

It is also to be seen that Smt. Heero Devi has no where alleged that she was residing anywhere else away from her marital home, but her allegation, as is apparent from paras 2, 3, 4, 5 and 6 of the application, is that she had been subjected, to neglect by her husband at his house and he had also tried to force her to leave that house by beating her, and issues born out of this wedlock had died due to neglect of her husband and that she had fallen ill but her husband was not providing any medical treatment nor food to her.

The legal position is that even where the husband is keeping the wife at his house but if he is neglecting her in the manner as alleged in the above application, the case will be certainly covered u/s 125, Cr. P.C. and the wife would be entitled to the maintenance, even if the wife was residing in her husband''s house.

The learned Judge, Family Court has also referred to certain documents filed by Smt. Heero Devi which go to show that previously also Rajpal had neglected her and so a compromise had taken place before the police in which Rajpal had agreed to pay Rs. 500 per month as maintenance to her and also promised to deposit Rs. 10,000 in her name. Thereafter on reference of the case to Parivar Paramarsh Samiti Samjhaula Kendra, the report which was received from that Kendra shows that Smt. Heero Devi was subjected to neglect by her husband. Under these circumstances, the learned Presiding Officer of the Court was right in his conclusion that taking into consideration the allegation made in the application u/s 125, Cr. P.C. the application was prima facie maintainable and the objection against the application was liable to be dismissed. There is no error in his finding.

It is also to be seen that these are questions of fact whether Smt. Heero Devi is residing with her husband or not and whether she had been subjected to neglect by her husband or not, and these points can be properly adjudicated only after evidence of the parties and the same could not be decided at the initial stage without evidence and so the proper procedure for the applicant is to file his written statement to the application u/s 125, Cr. P.C. and in that written statement he can take all these points and thereafter those points will be properly adjudged after evidence.

Any how the order passed by the learned family court does not suffer from any illegality. There is no force in this application u/s 482, Cr. P.C. and it is hereby dismissed. The impugned order of the learned Judge, Family Court is maintained.