- (1.)THIS Special Criminal Application under Articles 14, 19, 21, 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed by the petitioner-wife to quash and set aside order dated 31-3-2010 passed by the learned Addl. Sessions Judge, Bharuch in Criminal Revision Application No.86 of 2009 confirming the order dated 10-7-2009 passed by the learned Judicial Magistrate (First Class), Bharuch, in Cri.Misc.Appln.No.344 of 2007 dismissing the application filed under Sec.125 of Cr.P.C.
(2.)FACTS in short as appearing from this petition are that marriage of the petitioner-Roshniben took place with the respondent No.2-Jitenkumar Rameshbhai Bhoi in the year 2003. Initially the marriage life went on smoothly but after one year, the respondent No.2 and their family members were harassing the petitioner. As the couple did not have any child, respondent No.2 started teasing her and demanded dowry. It is also averred in the petition that in 2007, when father and mother of the petitioner came to the house of respondent No.2 and when the respondent No.2 and his family members asked the petitioner to sign on a stamp paper, she refused to sign. She however filed Cri.Misc.Appln.No.344 of 2007 under Sec.125 of Cr.P.C. before the learned Judicial Magistrate (First Class), Bharuch, seeking maintenance of Rs.5,000/- from the respondent No.2. However, said application was dismissed by the learned Magistrate. She thereafter preferred revision being Cri. Revision Application No.86 of 200 before the learned Addl. Sessions Jduge, Bharuch. However, said revision was also dismissed. Hence, the present petition.
Heard learned advocate, Mr.Amit N.Chaudhary for the petitioner and learned APP, Mr.A.J.Desai for the respondent No.1-State. Though rule is duly served on the respondent No.2, he did not appear either personally or through advocate.

This Court has gone through the orders passed by both the courts below. These are concurrent findings of both the Courts and, therefore, this Court is conscious that this Court has limited power under Articles 226 and 227 of the Constitution of India to interfere with the findings of the courts below. If there is abuse of process of law or evidence on record has not been properly appreciated by the Courts, then only this Court has power to interfere with the findings of both the courts below.

(3.)THIS Court has gone through the evidence of P.W.No.1-petitioner given before the trial court. As per her evidence, as she was not able to conceive, she was subjected to physical and mental torture at the hands of in-laws and therefore, she was compelled to leave her matrimonial home. However, nothing has come out from her cross-examination which falsifies this version given by the petitioner. No doubt, in her cross-examination, she has admitted that as she wanted to take divorce, application under Sec.125 of Cr.P.C. has been filed. Both the courts below picked up this part of evidence and came to the conclusion that with ulterior motive to get divorce and to bring pressure on the respondent No.2-husband, application for maintenance has been filed and, therefore, the application was rejected by the courts below. No findings are given by both the courts below as far as other part of evidence is concerned. She stuck to the version given in her application filed under Sec.125 of Cr.P.C. by stating on oath as to in which manner torture was committed by her in-laws. Nothing has come out from her cross-examination which falsifies her case. If she was tired of the torture committed by the in-laws and has stated that to get divorce, application under Sec.125 of Cr.P.C. was filed. Only from these words or sentence, it could not be said that no torture was committed by the in-laws. Nothing has come out to falsify the statement given by the petitioner. It is case of the respondent No.2-husband that as she was borne and brought up in town, she did not like to stay in small Village like Kwat and, therefore, she voluntarily left the house. As per the evidence of the petitioner, whenever she went with her father and mother on 3-4 occasions, she did not come back. It is also the case of the respondent No.2-husband that as per the evidence of witness Shantilal Muljibhai Chauhan, who has been examined at Ex.29 at the instance of respondent No.2, talks took place with father and mother of the petitioner when they were asked to advice their daughter to stay at matrimonial home and not to leave the matrimonial home. In his cross-examination, she has admitted that he has very good relation with the family members of respondent No.2. Even he was not able to give the name of respondent No.2 though he was examined by the advocate of the respondent No.2. Thus, no importance can be attached to the evidence of this witness. He being the neighbour of the respondent No.2 having good relation with the respondent No.2 was examined at the instance of respondent No.2. It is however stated by the respondent No.2-husband in his evidence that during the seven years of marriage life, petitioner stayed at matrimonial home for only one year and as Kwat is a small Village, she did not like to stay there. In his cross-examination, he has admitted that before his marriage with the petitioner-wife, both the family members of husband and wife met together and thereafter engagement took place. It appears that this was an arranged marriage and before the marriage, relatives of each other met and marriage was solemnized. Therefore, it was within the knowledge of the petitioner as well as her parents and relatives that after the marriage, the petitioner has to stay with her husband in Kwat Village as the husband was doing business in Kwat. Thus, it is very difficult to agree with the case of the respondent No.2-husband that as she was borne and brought up in town and Kwat being a small village, the petitioner did not like to stay at Kwat and therefore, deserved the husband. Both the courts below did not consider the said aspect and picking up and relying only on few words uttered by the wife and discarding the other part of the evidence came to the conclusion that with ulterior motive to take divorce, application under sec.125 Cr.P.C. was filed by the petitioner. It is pertinent to note that whenever persons come to Court as a laymen for giving deposition, they do not know how to give deposition on oath before the Court and therefore, innocently they give deposition and hence, some words stated here and there should not be picked up and stuck to the same. Overall deposition will have to be seen and other evidence appearing on record will also have to be considered and appreciated in its true perspective. Therefore, in the opinion of this Court, her evidence is quite natural and it appears that as she was tired of torture at the hands of her in-laws, she felt that divorce was the only option and therefore, after seven years of her marriage life, filed maintenance application and stated on oath that to take divorce, application under Sec.125 of Cr.P.C. was filed and hence, from any stretch of imagination, it could not be construed that she has deserted the respondent No.2-husband. As discussed above, nothing has come out from her cross-examination which falsify her version as far as evidence regarding torturing is concerned. Therefore, in the opinion of this Court, both the courts below have not properly appreciated the evidence on record and thereby committed error in rejecting her maintenance application. In view of the above, maintenance amount will have to be awarded to the petitioner after determining the income of the respondent No.2-husband.
As far as income of the respondent No.2-husband is concerned, it appears from the evidence of petitioner that the respondent No.2 is doing business of dry fruits and by that way earning Rs.12,000/- to Rs.15,000/- per month but no evidence is produced on record in this regard. However, it has come out from the evidence of respondent No.2-husband, that he is not doing any business but is doing labour work and thereby earning only Rs.60/- to Rs.70/- per day and Rs.2,000/- per month in all. He has also stated on oath that he has the responsibility to maintain his father, mother and two younger brothers. He has also stated that the petitioner is also earning Rs.1500/- to Rs.2,000/- per month by selling groundnuts.