High Court · 2025

1. Heard Sri Santosh Kumar Mehrotra, learned counsel for the applicant as well as learned A.G.A. for respondent no. 2 and Sri Dinesh Chandra, learned counsel appearing for respondent no. 1.

2. The controversy involved in the present case has arisen on account of the fact that it is alleged that the applicant was married to opposite party no. 1, during their child hood i.e. 24- 25 years ago, as per Hindu Rites and Rituals and after nine years of their marriage ceremony of "Gauna" was performed where opposite party no.1 started living with the applicant. It was alleged by respondent no. 1 that family members and the applicant started demanding dowry and also harassing and torturing her and also misbehaved with her and later on evicted her from her matrimonial home, due to which opposite party no. 1 started living with her parents. She again started living with the applicant in her matrimonial home, but again, he was forcefully evicted and consequent to which she also lodged a first information report being Case Crime No. 155 of 1998, under Sections 498A, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act against the applicant and his family members.

3. Apart from the above, opposite party no. 1 has initiated proceedings under Section 125 Cr.P.C. It is alleged that the applicant has also filed an application for divorce under Section 13 of the Hindu Marriage Act. It is submitted that application under Section 125 Cr.P.C. preferred by opposite party no. 1 was rejected by means of order dated 21.03.2023. It was further alleged by opposite party no. 2 that the applicant after marriage got properly educated and is now working as teacher in a Government School and is earning about Rs.20,000/- per month.

4. In the application which has been filed under Section 12 of the of the Domestic Violence Act, the opposite party no. 1 had claimed maintenance. The Chief Judicial Magistrate - III, Faizabad also considered the entire facts and rejected the application by means of order dated 16.09.2013. He had taken due consideration and note of the fact that opposite party no. 1 has subsequently, married one Sukh Lal and even material was available on record to demonstrate the aforesaid marriage and on consideration of the aforesaid facts, the Chief Judicial Magistrate III, Faizabad was of the considered view that in the peculiar circumstances of the case, where wife was living with another person, it would not be equitable to grant maintenance under Section 12 of the Dowry Prohibition Act.

5. Aggrieved by the order dated 16.09.2013, opposite party no. 1 filed an appeal in the Court of Additional Sessions Judge/Special Judge (EC Act), Faizabad. The said appeal has been allowed and order dated 16.09.2013 has been set aside and the matter has been remanded to the trial Court for deciding the matter afresh after giving full opportunity of hearing to the parties by order dated 10.08.2015.

6. While allowing the appeal of opposite party no. 1, it has been noticed by the appellate Court that the trial Court has relied solely upon the findings of fact recorded during the proceedings under Section 125 Cr.P.C., without itself appreciating the evidence available on record. The appellate Court was of the view that findings should be recorded by the trial Court itself in the proceedings under Section 12 of the Domestic Violence Act rather then relying totally on the evidence recorded in the proceedings under Section 125 Cr.P.C.

7. During course of hearing learned counsel for the applicant has produced a copy of order dated 25.07.2014, passed by this Court in Criminal Revision No. 514 of 2009 - Smt. Lal Munni Vs. Nankau Harijan @ Gaya Prasad. The said criminal revision was preferred by opposite party no. 1 against order of the trial Court rejecting her application under Section 125 Cr.P.C. by means of order dated 10.08.2009, passed by the Principal Judge, Family Court, Faizabad where her application for grant of maintenance under Section 125 Cr.P.C. has been rejected. This Court while dismissing the revision preferred by opposite party no. 1, has categorically recorded the fact that "From the evidence on record, it is proved that now the revisionist is residing with Sukh Lal as his wife." For ready reference, order dated 25.07.2014 is quoted herein below :- "List has been revised. None present for the revisionist. This criminal revision has been filed against the judgment and order dated 10.08.2009, passed by the learned Principal Judge, Family Court, Faizabad, by which an application for maintenance under Section 125 Cr.P.C. has been rejected. It has been mentioned in the grounds of revision that the learned court below has committed manifest error of law and jurisdiction and the court has wrongly relied upon the testimony of OPW-2 Asha Ram. The testimony of other witnesses OPW-3 on the spot has also been wrongly relied upon. Learned court below has committed irregularity and there was no question of demand of dowry. The petition under Section 125 Cr.P.C. was filed by the revisionist alleging that she was the wife of opposite party. Both the parties had adduced their evidences. After appreciating the evidence on record, learned court below came to the conclusion that the revisionist was residing with Sukh Lal as husband and wife. Asha Ram OPW-2 has stated in his statement that he is Sarpanch of Nyay Panchayat and the parents of the revisionist had sent the revisionist with Sukh Lal. From the evidence on record, it is proved that now the revisionist is residing with Sukh Lal as his wife. Learned court below has considered all aspects of the matter in detail. A lady who is residing with another person as wife is not entitled to claim maintenance from his previous husband. In view of the above, I do not find any error or law or perversity in the impugned order. Accordingly, the revision is dismissed."

8. It is noticed that the coordinate Bench of this court has recorded the fact that opposite party no. 1 is residing with Sukh Lal and in the peculiar circumstances, such a person is not entitled to maintenance from her previous husband. The said finding of fact would certainly disentitle opposite party no. 1 from claiming maintenance under Section 12 of the Domestic Violence Act, also.

9. This Court also do not find any infirmity in the impugned order dated 10.08.2015, where the appellate Court has found the order of trial Court dated 16.09.2013 to be arbitrary to the extent that they had passed order only relying upon the evidence which has been brought forth in the proceedings under Section 125 Cr.P.C., rather than considering the material available on record.

10. In the light of above, present application under Section 482 Cr.P.C. stands disposed of, upholding the order of appellate Court dated 10.08.2015 and direct the trial Court to proceed in the matter in terms of the appellate order. The parties will be at liberty to adduce evidence in the proceedings under Section 12 of the Domestic Violence Act. The trial Court shall duly consider all the material available on record adduced by either of the parties, in accordance with law.

11. Let application under Section 12 be decided expeditiously, considering the fact that same is pending for sufficiently long length of time. The trial Court shall not be influenced by any observations made by the High Court in Criminal Revision No. 514 of 2009 or by the appellate Court in Criminal Appeal No. 133 of 2013. Order Date :- 17.3.2025 A. Verma (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Santosh Kumar Mehrotra, learned counsel for the applicant as well as learned A.G.A. for respondent no. 2 and Sri Dinesh Chandra, learned counsel appearing for respondent no. 1.

2. The controversy involved in the present case has arisen on account of the fact that it is alleged that the applicant was married to opposite party no. 1, during their child hood i.e. 24- 25 years ago, as per Hindu Rites and Rituals and after nine years of their marriage ceremony of "Gauna" was performed where opposite party no.1 started living with the applicant. It was alleged by respondent no. 1 that family members and the applicant started demanding dowry and also harassing and torturing her and also misbehaved with her and later on evicted her from her matrimonial home, due to which opposite party no. 1 started living with her parents. She again started living with the applicant in her matrimonial home, but again, he was forcefully evicted and consequent to which she also lodged a first information report being Case Crime No. 155 of 1998, under Sections 498A, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act against the applicant and his family members.

3. Apart from the above, opposite party no. 1 has initiated proceedings under Section 125 Cr.P.C. It is alleged that the applicant has also filed an application for divorce under Section 13 of the Hindu Marriage Act. It is submitted that application under Section 125 Cr.P.C. preferred by opposite party no. 1 was rejected by means of order dated 21.03.2023. It was further alleged by opposite party no. 2 that the applicant after marriage got properly educated and is now working as teacher in a Government School and is earning about Rs.20,000/- per month.

4. In the application which has been filed under Section 12 of the of the Domestic Violence Act, the opposite party no. 1 had claimed maintenance. The Chief Judicial Magistrate - III, Faizabad also considered the entire facts and rejected the application by means of order dated 16.09.2013. He had taken due consideration and note of the fact that opposite party no. 1 has subsequently, married one Sukh Lal and even material was available on record to demonstrate the aforesaid marriage and on consideration of the aforesaid facts, the Chief Judicial Magistrate III, Faizabad was of the considered view that in the peculiar circumstances of the case, where wife was living with another person, it would not be equitable to grant maintenance under Section 12 of the Dowry Prohibition Act.

5. Aggrieved by the order dated 16.09.2013, opposite party no. 1 filed an appeal in the Court of Additional Sessions Judge/Special Judge (EC Act), Faizabad. The said appeal has been allowed and order dated 16.09.2013 has been set aside and the matter has been remanded to the trial Court for deciding the matter afresh after giving full opportunity of hearing to the parties by order dated 10.08.2015.

6. While allowing the appeal of opposite party no. 1, it has been noticed by the appellate Court that the trial Court has relied solely upon the findings of fact recorded during the proceedings under Section 125 Cr.P.C., without itself appreciating the evidence available on record. The appellate Court was of the view that findings should be recorded by the trial Court itself in the proceedings under Section 12 of the Domestic Violence Act rather then relying totally on the evidence recorded in the proceedings under Section 125 Cr.P.C.

7. During course of hearing learned counsel for the applicant has produced a copy of order dated 25.07.2014, passed by this Court in Criminal Revision No. 514 of 2009 - Smt. Lal Munni Vs. Nankau Harijan @ Gaya Prasad. The said criminal revision was preferred by opposite party no. 1 against order of the trial Court rejecting her application under Section 125 Cr.P.C. by means of order dated 10.08.2009, passed by the Principal Judge, Family Court, Faizabad where her application for grant of maintenance under Section 125 Cr.P.C. has been rejected. This Court while dismissing the revision preferred by opposite party no. 1, has categorically recorded the fact that "From the evidence on record, it is proved that now the revisionist is residing with Sukh Lal as his wife." For ready reference, order dated 25.07.2014 is quoted herein below :- "List has been revised. None present for the revisionist. This criminal revision has been filed against the judgment and order dated 10.08.2009, passed by the learned Principal Judge, Family Court, Faizabad, by which an application for maintenance under Section 125 Cr.P.C. has been rejected. It has been mentioned in the grounds of revision that the learned court below has committed manifest error of law and jurisdiction and the court has wrongly relied upon the testimony of OPW-2 Asha Ram. The testimony of other witnesses OPW-3 on the spot has also been wrongly relied upon. Learned court below has committed irregularity and there was no question of demand of dowry. The petition under Section 125 Cr.P.C. was filed by the revisionist alleging that she was the wife of opposite party. Both the parties had adduced their evidences. After appreciating the evidence on record, learned court below came to the conclusion that the revisionist was residing with Sukh Lal as husband and wife. Asha Ram OPW-2 has stated in his statement that he is Sarpanch of Nyay Panchayat and the parents of the revisionist had sent the revisionist with Sukh Lal. From the evidence on record, it is proved that now the revisionist is residing with Sukh Lal as his wife. Learned court below has considered all aspects of the matter in detail. A lady who is residing with another person as wife is not entitled to claim maintenance from his previous husband. In view of the above, I do not find any error or law or perversity in the impugned order. Accordingly, the revision is dismissed."

8. It is noticed that the coordinate Bench of this court has recorded the fact that opposite party no. 1 is residing with Sukh Lal and in the peculiar circumstances, such a person is not entitled to maintenance from her previous husband. The said finding of fact would certainly disentitle opposite party no. 1 from claiming maintenance under Section 12 of the Domestic Violence Act, also.

9. This Court also do not find any infirmity in the impugned order dated 10.08.2015, where the appellate Court has found the order of trial Court dated 16.09.2013 to be arbitrary to the extent that they had passed order only relying upon the evidence which has been brought forth in the proceedings under Section 125 Cr.P.C., rather than considering the material available on record.

10. In the light of above, present application under Section 482 Cr.P.C. stands disposed of, upholding the order of appellate Court dated 10.08.2015 and direct the trial Court to proceed in the matter in terms of the appellate order. The parties will be at liberty to adduce evidence in the proceedings under Section 12 of the Domestic Violence Act. The trial Court shall duly consider all the material available on record adduced by either of the parties, in accordance with law.

11. Let application under Section 12 be decided expeditiously, considering the fact that same is pending for sufficiently long length of time. The trial Court shall not be influenced by any observations made by the High Court in Criminal Revision No. 514 of 2009 or by the appellate Court in Criminal Appeal No. 133 of 2013. Order Date :- 17.3.2025 A. Verma (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench