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RAMASHEY PRASAD versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Ramashey Prasad v. State Of U.P. & Another - CRIMINAL MISC. WRIT PETITION No. 5395 of 2006 [2007] RD-AH 9057 (11 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                  RESERVED

CRIMINAL MISC. WRIT PETITION NO. 5395 OF 2006

Ramashrey Prasad...........................................................Petitioner.

                                              Versus

State of U.P. and another.............................................Respondents.

Hon'ble Mrs. Poonam Srivastav, J.

Heard Sri Taba Bin Islam, Advocate, for the petitioner, Sri Anil Srivastava, Advocate, for the respondent no.2 and learned A.G.A. for the State.

The instant writ petition arises out of the proceedings under Section 125 Cr.P.C. instituted by Smt. Kavita Prasad wife of the petitioner. The trial court allowed application under Section 125 Cr.P.C. awarding maintenance to the respondent no.2 to a tune of Rs.4,000/- per month from the date of application vide order dated 3.10.2005. A criminal revision no. 185 of 2005 was preferred against the aforesaid order and the same was dismissed by the Additional Sessions Judge, F.T.C. No. 4, Pilibhit vide judgment and order dated 18.4.2006. Both the orders are impugned in the instant writ petition.

The petitioner married respondent no.2 in the year 1991 while she was still pursuing her medical studies from K.G.M.C. Lucknow. After completion of the course in the year 1996, she got herself registered with Indian Medical Council in the year 1998. Submission on behalf of the petitioner is that the respondent no.2 is a qualified Gynecologist. Previously, she was working in Safdarganj Hospital New Delhi, Jeevan Hospital, and various other nursing homes and she was also attached with private hospitals. She was assessed for income tax and Permanent Account Number was issued to her. The information from Income Tax department regarding her permanent account number etc. has been annexed as annexure no.2 to the writ petition.

The respondent no.2  denied the assertions of the petitioner and stated that while she was actively pursuing her career as a Gynecologist and was earning well, her husband took away all the money from her and purchased a number of properties in joint name. But when she was turned out from the house and started living at Pilibhit with her mother, she was coerced to endorse her signature on blank papers and the properties were got transferred exclusively by the petitioner in his own name.  She was turned out from her matrimonial house. The respondent no.2 claimed to be penniless and completely dependent on her own mother without any income. The petitioner has brought to my notice that allegations in the First Information Report and the application under Section 125 Cr.P.C. stood completely belied as after institution of maintenance case, the respondent no.2 came to New Delhi on 3.10.2002 and lived with the petitioner till 3.3.2003.  Finally, she again went back of her own choice and refused to discharge matrimonial obligation. The  respondent no.2 examined herself and two other witnesses on her behalf. Her statement has been annexed as annexure no.5 to the writ petition. The petitioner was examined as D.W.1.

Learned counsel for the petitioner laid emphasis on the statement of the contesting respondent where she admitted that during continuation of the proceedings under Section 125 Cr.P.C., she had gone to New Delhi and stayed with her husband of her own sweet will for a period of five months and, therefore, it is evident that whenever the respondent no.2  wished and was willing to live with her husband, she was allowed to do so. Besides, since she is a qualified doctor, therefore, is not entitled for any maintenance.

Counsel for the contesting respondent has though admitted this fact that she is a qualified doctor and she was actively pursuing her medical profession till she was turned out from the house. She was subjected to cruelty by her husband and in-laws. All her belongings were taken away from her. She was turned out from the house depriving her of basis requirement of day to day life. She is not physically and mentally fit to pursue her career. At present, she is completely dependent on her own mother.

Learned Magistrate has recorded a finding that the petitioner pressurized the respondent no.2 to quit her job and sit at home, and he demanded Rs.5,00,000/- for purchase of a house at Ghaziabad, which could not be fulfilled. The respondent no.2 is the second wife and first wife belongs to Meerut, after separation from his first wife, he married the respondent no.2 and now he is looking forward to marry third time. The learned Magistrate placed reliance on her evidence and also statement of other prosecution witnesses, who confirmed her statement that she was physically tortured for non-fulfillment of demand of Rs.5,00,000/-. The Magistrate came to a conclusion that since the husband himself had forced her to quit medical profession at present she is penniless and unable to maintain herself. Taking into consideration position of the petitioner, who is working as the Joint Director in the Electronics Department of the Government of India, New Delhi, the amount of Rs.4,000/- per month towards maintenance has been awarded from the date of application. The order of the Magistrate was confirmed in revision.

I have heard learned counsels appearing for the parties. It is true that the respondent no.2 is a qualified doctor and she is registered with Medical Council of India. She was earning well and the papers relating to income tax assessment goes to prove that she had a steady  income. All those documents relate to the period when she was living with her husband, they had jointly purchased a number of properties. Income tax returns for the subsequent years has not been placed to controvert findings of the courts below. There is no material to show that the respondent was earning well and paying tax at the relevant time, when the application under Section 125 Cr.P.C. was allowed, on the contrary findings of the courts below are that she was subjected to mental cruelty as well as physically tortured. She was forced to quit her job and she reached at a stage when she could no longer pursue her career. She is staying at her mother's home since very long time. No doubt, the respondent no.2 cannot be said to be a lady, who cannot maintain herself but in the given circumstances, she has been reduced to such a state that she is unable to utilize her qualification for earning her livelihood.  Nothing has been brought on record to controvert this save for the assertion that she is working in a nursing home of her Mausi. There is neither any documentary proof to show that she is in the panel of doctors of the nursing home nor any prescription is brought on record to support the said contention.

I am not inclined to set aside the judgment and orders of the courts below awarding maintenance to the respondent no.2 to a tune of Rs.4,000/- from the date of application. However, since it is own admission of the respondent no.2 that she stayed  for a period of five months with her husband at Delhi and, therefore, it could be concluded for those days when she stayed with her husband, he was providing her with basic necessities of life till she was again turned out from the house. In the circumstances, I uphold the impugned judgment and orders dated 18.4.2006  passed by the Additional Sessions Judge, F.T.C. No.4, Pilibhit and 3.10.2005 passed by the Additional Chief Judicial Magistrate, court no.3, Pilibhit. The writ petition is dismissed.  

The executing court is directed to calculate the amount of maintenance and arrears after deducting the amount from 3.10.2002 to 3.3.2003 and the petitioner shall pay the entire amount of arrears within a period of two months. He shall continue to deposit the amount of maintenance by 10th day of each month, which the respondent will be entitled to withdraw.

Dt. 11.5.2007

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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