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Puran Singh Vs. Smt. Shanti Devi - Court Judgment

SooperKanoon Citation

Subject

Criminal

Court

Rajasthan High Court

Decided On

Case Number

S.B. Criminal Revision Petition No. 628 of 2001

Judge

Reported in

II(2002)DMC279; 2002(3)WLN41; 2002(3)WLN41

Acts

Code of Criminal Procedure (CrPC) , 1973 - Sections 125; Family Court Act, 1984 - Sections 13

Appellant

Puran Singh

Respondent

Smt. Shanti Devi

Appellant Advocate

Haider Agha, Adv.

Respondent Advocate

Sudhir Saraswat, Adv.

Disposition

Revision dismissed

Excerpt:


.....and effect of bar under section 13--in view of the bar of section 13 for the appearance of a legal practitioner, the judge of the family court becomes the judge as also the counseller of the parties--he may suggest the parties as to which evidence they should produce to establish their case--husband not stating even a word in his statement regarding wife of adultery--family court rightly rejected the allegation--it cannot be said that the case should be remanded for further evidence as the husband was not represented by a lawyer--section 13 excludes the applicability of order 3 rule 1 cpc, but restriction is only with reference to legal practitioner and not the other categories of recognised agents--there is no total prohibition and the family court in appropriate cases, may seek the assistance of a legal practitioner as an amicus curiae--section 13 is also not violative of articles 19, 21 and 39-a of the constitution.;revision petition dismissed - - 11. the respondent-wife through his statement recorded in court as awi has clearly stated that there was dowry demand from the side of her-in-laws and the petitioner-husband used to beat her after taking liquor..........he has simply denied the facts and he has nowhere stated in his statement about the fact of adultery alleged to have been committed by his wife-respondent with her behnoi devi singh.13. in these circumstances, if the learned judge, family court, after analysing the evidence of both the parties, came to the conclusion that the fact of adultery has not been proved by the petitioner-husband and furthermore, the petitioner-husband has deserted and neglected his wife-respondent, he has committed no illegality in doing so, as these findings are based on correct appreciation of evidence.14. hence, argument no. 1 stands rejected.15. before dealing with the second point, the object of the family court act, 1984 (hereinafter referred to as 'the act of 1984') has to be kept in mind.16. the object of the act of 1984 is to provide for the establishment of family courts with a view of promote conciliation and to secure speedy settlement of disputes relating to marriage and family affairs and all the matters indicated therein. one aspectto be highlighted in respect of the act of 1984 is that it is essentially a social and beneficent legislation.17. the act of 1984 has been enacted so.....

Judgment:


Garg, J.

1. This revision petition has been filed by the petitioner-husband against the order dated 29.3.2001 passed by the learned Judge, Family Court, Jodhpur in Criminal Case No. 115/97 by which he accepted the application filed by the respondent-wife under Section 125 Cr.P.C. and ordered that the petitioner-husband would pay Rs. 400/- p.m. (Rs. four hundred only) as maintenance allowance to the respondent-wife with effect from 26.9.1997, the date of presentation of that application.

2. The necessary facts giving rise to this revision petition are as follows :-

The respondent-wife filed an application under Section 125 Cr.P.C. before the Family Court, Jodhpur on 26.9.1997 stating inter-alia that she was married with the petitioner-husband on 22.5.1983 as per Hindu rites and Gona Ceremony took place six years back, but after that, on so many trivial matters, the petitioner-husband used to quarrel with her and before four years back, she was shunted out from her in-laws' house by the petitioner-husband and other members of his family and she was tortured and harassed in so many ways and there was dowry demand also from her in-laws.' t was further stated in the application that since for the last three years, the respondent-wife was passing through a crisis because of mental and physical cruelty on the part of petitioner-husband and other members of his family, therefore, she lodged a report for the offence under Section 498-A I.P.C. against them and on that report, challan was filed in the Court against the petitioner-husband and his father and mother and that case is still pending in the Court of Jaitaran District Pali. It was further stated in the application that not only thus, the petitioner-husband had contracted second marriage with one lady, namely, Parsi and out of that wedlock, a female child was also born. It was further stated in the application that respondent-wife has still desire to live with the petitioner-husband, but for no reason, the petitioner-husband had deserted her. It was further stated in the application that she had no means to maintain herself and on the contrary, the petitioner-husband earns about Rs. 5000-6000/- per month and he was having a Tractor also and thus, she has claimed Rs. 500/- per month as maintenance allowance.

The application of the respondent-wife was contested by the petitioner-husband by filling a reply on 18.3.1998 in which he denied all the allegations levelled against him by the respondent-wife and his main case was that no Ceremony of Gona had taken place between them and the respondent-wife lived in his house only for oneweek and, therefore, to say that she was beaten and tortured by him is absolutely wrong as in such a short period, all incidents as alleged by the respondent-wife could not have taken place. The fact that a case for the offence under Section 498-A I.P.C. was filed by the respondent-wife has been admitted by the petitioner-husband. The petitioner-husband has also denied the allegation of re-marriage with lady named as Parsi. On point on means, he has alleged that the respondent-wife was doing the business of tailoring and thus, she had sufficient means to maintain herself and on the contrary, he himself is a labourer and earns only Rs. 30-40 per day. The further case of the petitioner-husband was that when the respondent-wife remained in his house for a week, she was not pregnant but she became pregnant in her parents' house and she mis-carriaged her pregnancy of four months also and she was having illicit relations with her Behnoi Devi Singh and from this point of view also, it was not possible for him to live with such type of lady. Hence, it was prayed that the application filed by the respondent-wife be dismissed.

Thereafter, both the parties led evidence in support of their respective case. Three witnesses were produced by the respondent- wife and three witnesses were produced by the petitioner-husband.

After analysing the evidence of both the parties, the learned Judge, Family Court, Jodhpur through his impugned order dated 29.3.2001 allowed the application of the respondent-wife in the manner stated above holding inter-alia:-

(1) That the allegation that respondent-wife was having illicit relations with her Behnoi Devi Singh was absolutely wrong as the said allegation has not been proved by the petitioner- husband.

(2) That petitioner-husband has refused to live with the respondent-wife for no fault of her and he has also deserted and neglected her.

(3) That the fact that petitioner-husband was only earning Rs. 40/- per day as labourer was not found correct.

Aggrieved from the said order dated 29.3.2001 passed by the learned Judge, Family Court, Jodhpur, this revision has been filed by the petitioner-husband.

3. In this revision, the following submissions have been raised by the learned counsel appearing for the petitioner-husband:-

(1) That from the evidence on record, the fact that petitioner-husband neglected and deserted respondent-wife was not proved and thus, the findings of the learned Judge, Family Court are erroneous one and they should be set aside.

(2) That allegation of adultery could have not been proved by the petitioner-respondent as in Family Court, lawyers are not being allowed to appear and furthermore, only questions were put to the petitioner-husband (NAW1) by the Court and the petitioner- husband was not allowed to state what he wanted to state and, therefore, in these circumstances, the impugned order should be set aside and the case be remanded back to the Family Court, Jodhpur with a direction that fresh evidence to prove that fact be taken and in this respect, it has been further argued that since in the Family Court, the lawyers are not being allowed to appear, therefore, injustice is being done to the party and from this point of view also, the impugned order should be set aside.

Hence, it was prayed that this revision petition be allowed and the impugned order passed by the learned Judge, Family Court, Jodhpur be set aside and the application filed by the respondent- wife under Section 125 Cr.P.C. be dismissed.

4. On the other hand, the learned counsel appearing for the respondent-wife supported the impugned order passed by the learned Judge, Family Court, Jodhpur. He has further submitted that the findings recorded by the learned Judge, Family Court are based on correct appreciation of evidence on record and in awarding maintenance allowance to the respondent-wife, the learned Judge, Family Court has not committed and illegality and therefore, no interference is called for with the impugned order.

5. I have heard the learned counsel appearing for the petitioner-husband and the learned counsel appearing for the respondent-wife and perused the record of the case.

6. Before appreciating the contentions of the parties, in short, the object of Sections 125 to 128 Cr.P.C. has to be kept in mind.

7. Chapter-IX of the Code of Criminal Procedure, 1973 contains Sections 125 to 128. These sections deal with maintenance to the wife, children and parents. These provisions are intended to fulfill a social purpose and provide a Preventive remedy by way of payment of maintenance to the neglected wife, children and parents. The object is to compel a man to perform his moral obligations which he owes to the society in respect of his neglected wife, children and parents against starvation and to tide over the immediate difficulties.

8. The provision provides a speedy remedy against starvation by way of a summary procedure. It is not co-extensive with the civil liability of a husband. It gives effect to the fundamental and natural duty of a man to maintain his wife. The basic idea behind the provision is that no wife should be left helpless so that she may be tempted to commit a crime. This provision enables a Magistrate to take summary action for prevention of destitution.

9. Section 125 Cr.P.C. is designed to prevent vagrancy and destitution. This section provides a summary and speedy remedy to get maintenance.

10. Thus, it can easily be said that the proceedings before the Family Court are of summary nature.

11. The respondent-wife through his statement recorded in Court as AWI has clearly stated that there was dowry demand from the side of her-in-laws and the petitioner-husband used to beat her after taking liquor and the case for the offence under Section 498-A IPC, which was lodged by her against the petitioner-husband, is still pending and she had no means to maintain herself and the petitioner-husband had sufficient means and he was having a Tractor also. She has been cross-examined, but nothing has come out to affect her testimony. Her statement is further corroborated by the statements of AW-2 Khinvraj and AW3 Ghanshyam.

12. In rebuttal, the petitioner-husband has himself examined as NAW1 and in his statement, he has simply denied the facts and he has nowhere stated in his statement about the fact of adultery alleged to have been committed by his wife-respondent with her Behnoi Devi Singh.

13. In these circumstances, if the learned Judge, Family Court, after analysing the evidence of both the parties, came to the conclusion that the fact of adultery has not been proved by the petitioner-husband and furthermore, the petitioner-husband has deserted and neglected his wife-respondent, he has committed no illegality in doing so, as these findings are based on correct appreciation of evidence.

14. Hence, argument No. 1 stands rejected.

15. Before dealing with the second point, the object of the Family Court Act, 1984 (hereinafter referred to as 'the Act of 1984') has to be kept in mind.

16. The object of the Act of 1984 is to provide for the establishment of family Courts with a view of promote conciliation and to secure speedy settlement of disputes relating to marriage and family affairs and all the matters indicated therein. One aspectto be highlighted in respect of the Act of 1984 is that it is essentially a social and beneficent legislation.

17. The Act of 1984 has been enacted so that disputes within the family may get priority and be disposed expeditiously. One of the object is also to see that efforts are made to bring about amicable settlement. For ensuring speedy disposal it has been thought fit that the family Courts should not enter into legal rigours and also the complicated principles about the admissibility of documents under the Indian Evidence Act. The family Court has been left free to receive any evidence or material which assists it to deal effectually with a dispute and the provisions of the Indian Evidence Act would not be applicable.

18. The family courts were established with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and the greater emphasis was on conciliation and achieving social and desirable results and adherence to rigid rule of procedure or evidence were to be eliminated. The family Court established under the Act of 1984 ought to adopt an approach different from that adopted in ordinary civil proceedings. They should not adopt a rigid approach rather they should take a broader view of the background and policy underlying the statute.

19. To promote the object of the Act of 1984 and keeping in mind the spirit of the Act of 1984, Section 13 was incorporated, which runs as under:-

'13. Right to legal representation-Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.'

20. A fair reading of Section 13 of the Act of 1984 indicates that there is no total prohibition of being represented by a legal practitioner. The proviso clearly provides that if the family Court considers it necessary in, the interest of justice, it may seek assistance of legal expert as amicus curiae.

21. The prohibition contained in Section 13 of the Act of 1984 has the effect of excluding the applicability of Order 3 Rule 1 CPC to the proceedings under the Family Courts Act to the extent of a provision made to the contrary. The restriction is only with reference to a legal practitioner and not the other categories of recognised agents viz., persons holding powers of attorney, authorising them to make such appearance, application or the acts on behalf of such parties. Thus, a party to a suit proceeding is entitled to have the papers filed or presented before the family Court through a recognised agent in terms of Order 3 Rule 1 and such a recognised agent at any rate cannot be a legal practitioner. This has got to be limited or confined to the stage of presentation or filing of the matters only. The petitioner cannot take advantage of the other provisions contained in Order 3 Rule 1 or Order 4 Rule 1 or Section 132 CPC, once and for all, to avoid personal appearance before the family Court and claim to have the adjudication through such a recognized agent, on account of the peculiar provisions of law governing the adjudication in the family Courts.

22. The fact that the appearance of legal practitioner is excluded casts a heavy burden on the Judge of the Family Court in deciding cause. He becomes the Judge as well as Counsellor of the parties. In receiving evidence and in handling the matter, the family Court has been given a free hand to receive the report, statements, documents, information or any other material in evidence which may assist in effectually dealing with the dispute. At the same time, it may also be said that the family Court can suggest to the parties as to which witness they should produce in order to establish their case and the party or one of them should not be made to suffer on account of the fact that they have to deal with the case without the aid of legal practitioner.

23. When this being the position, if the statement of the petitioner-husband as NAW1 is recorded by the Family Court in question-answer form to some extent, it would not affect its veracity or it cannot be said that the Family Court adopted the procedure prejudicial to the petitioner-husband.

24. Thus, the argument that since no lawyer was being allowed to represent petitioner-husband in the Family Court, therefore, the charge of adultery was not proved, is not at all tenable. As already stated above, Family Court Judge is counsel of the parties and he helps the parties in putting questions and making cross-examination, but to level a charge against him that he has not allowed the petitioner-husband to prove his case is baseless. Apart from that, from the order-sheets of the Family Court, it does not appear that the petitioner-husband made a request before the Family Court for permission to be represented by legal practitioner.

25. Besides this, it may be stated here that Section 13 of the Act of 1984 cannot be said to be violative of Articles 19, 21 or Article 39-A of the Constitution of India and, therefore, the contents of statement of the petitioner-husband recorded by the Family Court as NAW1, cannot be challenged in any manner and from perusing his statement, it appears that the fact of adultery has not been mentioned by him in his statement and therefore, charge of adultery was found to be baseless by the learned Judge, Family Court and in doing so, no illegality has been committed by the learned Judge, Family Court.

26. Thus, no question of remanding the matter to the Family Court for recording fresh evidence arises and the second argument is also rejected.

27. It may be stated here that when the husband levels a charge of adultery against his wife falsely, even in such a case, if the wife refuses to live with him, her refusal can be said to be justified. From this point of view also, if the respondent-wife is living separately, her separate living is justified.

28. Apart from this, the findings recorded by learned Judge, Family Court, Jodhpur is him impugned order dated petitioner- husband deserted and neglected his wife-respondent are based on correct appreciation of evidence on record. The appreciation of evidence by the learned Judge. Family Court is proper and it cannot be said that the approach of the learned Judge, Family Court in dealing with the evidence is manifestly erroneous and the conclusions drawn are wholly unreasonable and perverse. The learned Judge, Family Court has not committed any illegality or infirmity in granting maintenance allowance of Rs. 400A p.m. to the respondent-wife. The amount of maintenance cannot be said to be excessive one. Hence, no interference is called for with the impugned order.

For the reasons stated above, this revision petition filed by the petitioner-husband is liable to be dismissed and the same is hereby dismissed, after confirming the order dated 29.3.2001 passed by the learned Judge, Family Court, Jodhpur.


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