- (1.) THE instant criminal revision petition under Section 397 read with Section 125 Cr. P. C. is directed against the judgment dated 17-10-2006 passed by the Special Judge, SC/st (Prevention of Atrocities Cases), Jhalawar in Criminal Revision No. 102/2005, whereby the criminal revision filed by the respondent-husband against the order dated 08. 08. 2005 passed by the Judicial Magistrate (First Class), Khanpur, District Jhalawar in Criminal Misc. Case No. 179/2003, has been allowed and the said order dated 08. 08. 2005 passed by the trial Court granting maintenance in favour of the petitioners has been reversed.
(2.) BRIEF facts of the case are that the petitioner No. 1 Smt. Anita and respondent Dharamraj got married in 'samuhik Vivah Sammelan' at village Kanvas, District Kota and thus petitioner No. 1 is legally wedded wife of the respondent Dharamraj and out of their wedlock, petitioner Nos. 2 and 3 Kaushal and Pradeep born. She was living with the respondent quite happily and was performing her domestic duties, but after some time the respondent and his family members started demand of dowry and she was physically and mentally tortured and harassed and was not provided food and clothes. In the month of January, 2003 the petitioner No. 1 was threatened and thrown away from the house by the respondent-husband. It is also alleged that the respondent has remarried with Badri Bai in July, 2003 without taking divorce from the petitioner No. 1 by way of NATA marriage. Since then the petitioner and her minor sons are living with her parents and she is not having any source of income for herself or for her minor sons and, therefore, she filed an application under Section 125 Cr. P. C. before the Court of Judicial Magistrate, Khanpur for maintenance. The trial Court vide its judgment dated 08. 08. 2005, allowed the application moved by the petitioners under Section 125 Cr. P. C. and granted maintenance of Rs. 700/- per month in favour of the petitioner No. 1 Smt. Anita, the wife of the respondent- husband and Rs. 500/- per month each in favour of the petitioner Nos. 2 and 3, minor sons of the respondent Aggrieving and dissatisfying with the said judgment of the trial Court dated 08. 08. 2005, the respondent-husband preferred criminal revision before the Court of Special Judge SC/st (Prevention of Atrocities) Cases, Jhalawar under Section 397 Cr. P. C. and the Revisional Court having considered each and every aspect has observed that since the petitioner wife is living separately at her own will, therefore, as per the provisions of Section 125 Cr. P. C. , she is not entitled to receive any maintenance. It is also observed by the Revisional Court that second marriage by way of 'nata' is not proved by the petitioner and therefore, the criminal revision filed by the respondent- husband has been allowed and the order of the trial Court dated 08. 08. 2005 has been quashed and set-aside vide judgment dated 17-10-2006. Against the said judgment of the Revisional Court dated 17-10-2006, the petitioners have preferred this revision petition on the ground that the Revisional Court has not correctly appreciate the evidence and the circumstances of the case as the evidence adduced before the trial Court clearly indicates that second marriage by way of 'nata' is performed by the respondent and further the Revisional Court also not care to see the prima- facie fact that the petitioner-wife was living peacefully with her husband but she was forced to leave the matrimonial house and is not living separately at her own will. Therefore, the judgment passed by the Revisional Court dated 17-10-2006 deserves to be quashed and set-aside. Per contra, learned counsel appearing for the respondent- husband submits that the Revisional Court has rightly appreciated the provisions of Section 125 Cr. P. C. . He referred Section 125 Cr. P. C. and ingredients of which are essentially required to be fulfilled for getting maintenance, more particularly he referred sub-section (4) of Section 125 Cr. P. C. according to which, no wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be,, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(3.) AFTER referring sub-section (4) of Section 125 Cr. P. C. , the learned counsel for the respondent further submits that since the petitioner-wife is living separately at her own will and refused to live with her husband, therefore, as per the provisions of Section 125 Cr. P. C. , she is not entitled to receive any maintenance. He further submits that the petitioner-wife also failed to prove the factum of remarriage. He also referred the observations made by the Revisional Court and the Revisional Court also observed that the factum of remarriage is not established and burden of proof lies with the petitioner. Thus, there was no sufficient reason to live separately from her husband and the Revisional Court after appreciating the evidence available on record, has rightly passed the judgment dated 17-10-2006 quashing and setting aside the judgment of the trial Court dated 08. 08. 2005. Learned counsel for the petitioners submits that the petitioner-wife never refused to live with her husband and she is not living separately at her own will, on the contrary he submits that the respondent husband has remarried by way of 'nata' and also having a daughter out of second marriage. ;