Order

29/10/2018

1. The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of order dated 12.2.2018 passed by the learned Chief Judicial Magistrate, Nagaur in Criminal Misc. Case No.91/2015 whereby, the petitioners’ application filed under Section 125 Cr.P.C. for summoning certain documents was dismissed.

2. Learned counsel for the petitioners makes a limited submission that the petitioners’ application for summoning the documents ought to have been allowed by the learned Court below as the petitioner to discharge the burden of determining quantum of maintenance has sought summoning of certain documents, through which, learned Court below would come to the just conclusion. Learned counsel for the petitioners relies on the judgment of Karnataka High Court in case of Mrs. Divya G. Fernandes. vs. Mr.Lancelot Albert Monterio (Criminal Petition No.460/2013) decided on 13.2.2013 relying upon the judgment of Hon’ble Supreme Court in the case of Chaturbhuj Vs. Sita Bai [(2008) 1 SCC (Crl.) 356]. The judgment of Karnataka High Court reads as follows :-

“In this petition filed under Section 482 of Cr.P.C., the petitioner has sought for setting aside the order dated 18.01.2013 passed by the IV- MMTC, Bangalore, in Crl.Misc.No.70/2011 and to allow the application filed under Section 91 of Cr.P.C and direct summoning of the documents mentioned in the said application.

2) The petitioner has filed petition under Section 12 of the Protection of Women From Domestic Violence Act, 2005 against the respondent initially before the VIII ACMM, Bangalore which was registered as Crl. Misc. No.1353/2010 and later transferred to IV-MMTC and re-numbered as Crl. Misc. No.70/2011 seeking residential order, maintenance order and other reliefs.

3) The respondent has entered appearance and is contesting the proceedings. During the enquiry on the said petition, the petitioner filed application under Section 91 of Cr.P.C. seeking a direction to the respondent to produce the documents, such as the Bank Statements, Income-tax returns, Account Ledgers, etc. to establish the annual income of the respondent during the period when she was living with him and for the subsequent period, for the purpose of proper decision on the question of quantum of maintenance. The said application was opposed by the respondent. During the hearing of the said application, the respondent produced copes of few income-tax returns and bank statements. However, the learned Magistrate rejected the said application. Aggrieved by the said order, the petitioner filed Criminal Petition No.4405/2012. When the said petition was pending before this Court, the petitioner filed another application under Section 91 of Cr.P.C seeking summoning of the documents mentioned in the earlier application from the income-tax authorities as well as the bank authorities. The learned Magistrate after hearing both sides rejected the said application by the order impugned in this petition. Aggrieved by the said order, the petitioner has presented Criminal Petition No.460/2013.

4) During the course of the argument before this Court, learned counsel for the respondent submitted that respondent has no serious objections to summon the documents as sought in the application filed, which is the subject matter of Criminal Petition No.460/2013.

5) As held by the Apex Court in the case of Chaturbhuj Vs. Sita Bai [(2008) 1 SCC (Crl.) 356] in a proceeding under Section 125 of Cr.P.C., the burden in the first place is on the wife to show the means of her husband are sufficient. Therefore, the burden is on the petitioner wife to establish the financial condition of the respondent- husband for the Court to come to the just conclusion while determining the question as to the quantum of maintenance. In order to discharge the said burden, the petitioner filed an application seeking summoning of the documents from the authority. However, the learned Magistrate without considering the question a