Orissa High Court
Muralidhar Ghadei vs Sumitra Ghadei And Anr. on 15 July, 1993
Equivalent citations: II(1993)DMC401
JUDGMENT L. Rath, J.
1. This petition arises out of a proceeding Under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') at the instance of the opposite parties claiming maintenance from the petitioner on the ground of his second marriage. The application having been allowed by the learned S.D-J-M. granting maintenance of Rs. 300/- per month to the opposite party No. 1 and Rs. 200/- per month to the opp. party No. 2, the daughter through her, and order having been also confirmed in revision, the present position under Section 482, Cr. P.C. has been filed. The facts emerging lie in a short compass. It is the admitted case of the parties that the petitioner married the opp. party No. 1 in 1964. On difference arising between them, the petitioner filed a suit for divorce, O.S. No. 66 of 1968 under Section 13 of the Hindu Marriage Act. That suit was compromised as per compromise dated 21-8-1969, Ext. 1 in the present case and the parties agreed to live together and in fact did so. Later on the petitioner married for the second time and both the opposite party No. 1 and the second wife Manjulata lived with him. Two issues, a son O.P.W. 2 and a daughter (opp. party No. 2) were born to the opp. party No. 1 through the petitioner. It is the admitted case that no issue had been born to the opp. party No. 1 by the date of the compromise. The petitioner also begot four children through Manjulata. The petitioner is employed as a Sweeper at Calcutta. While it is the case of the opp. party No. 1 that she was driven out by the petitioner from the house, it is the case of the petitioner that while he was away at Calcutta, the opp. party No. 1 left the house on 10-4-1989 on her own accord.
2. In the petition under Section 125, Cr.P.C. the opp. party No. 1 claimed maintenance on the grounds of second marriage of the petitioner and her having been driven out on 10-4-1989 and that since that date she has been living at her father's place along with the opp. party No. 2 and is facing difficulties in maintaining herself and the daughter. The claim was resisted by the petitioner, while admitting the marriage as also the second marriage, that the opp. party No. 1 had been living happily with him without any dispute but that during his absence at Calcutta, she left on her own accord on 10-4-1989. In the written statement the petitioner had taken the stand of not having married for the second time but during the evidence, admitted the fact. The claims of the opposite parties were allowed since both the Courts came to the conclusion that in view of the admitted second marriage of the petitioner, a claim for maintenance ipso facto was made out.
3. Mr. Dhal, the learned Counsel appearing for the petitioner had urged two submissions, the first being that the fact of second marriage does not ipso facto entitle a wife to maintenance unless it is further established by her that the husband has refused to maintain her, and secondly that even if a second marriage automatically entitles the first wife to maintenance, yet if the wife has in fact condoned such lapse of the husband and has lived with him thereafter along with the second wife and had given birth to children, such cause of action cannot be resorted to, after lapse of long years, to maintain a petition under Section 125. Cr.P.C.
4. So far as the first submission is concerned, it is urged by Mr. Dhal that the substantive part of Section 125, Cr.P.C. declares a right in favour of the wife to claim maintenance only if the husband, having the duty to maintain, refuses to maintain her. Hence, according to him, the mere fact of second marriage would not establish a right to maintenance unless it is further established that there has been refusal to maintain. In support of such proposition Mr. Dhal relied upon two earlier decisions of this Court, namely, XXXVII (1971) CLT 954 (Donardhan Dandasena v. Srimati Tulusa Devi and Anr., and 1973 (2) CWR 1161 (Makra @ Makarananda Majhi v. Mali Devi). An earlier decision of the Calcutta High Court in AIR 1956 Calcutta 134 Smt. Beta Rani Chatterjee v. Bhupal Chandra Chatter jee) which was relied upon in the first decision of this Court, was also cited. Though some support is available to be drawn by Mr. Dhal from the decisions for the proposition advanced by him, yet the position is no longer res Integra and is against him in view of the decisions of the Supreme Court in AIR 1974 SC 1488 (Deochand v. State of Maharashtra and Anr.), and AIR 1987 SC 1103 (Begum Subanu @ Saira Banu and Anr. v. A.M. Abdul Gafoor). In Section 125(3) the explanation to the second proviso declares refusal of a wife to live with the husband because of his second marriage as a justified conduct. Though the provision comes in the context of Section 125 (3), yet it is by now settled that the right of the wife to refuse to live with the husband in case of his second marriage is not confined to the offer of the husband to maintain her only after an order under Section 125(1),Cr.P.C has been passed and he has been a called upon to pay the maintenance. Indeed there is no reason as to why a distinction should be maintained between a wife who desires to file a petition to claim maintenance on the ground of the husband's second marriage and the wife whose husband has contracted a second marriage after an order of maintenance has been passed and makes an offer to maintain the wife but she refuses to live with him in view of a second marriage. The words 'Refuses to maintain' the wife in the context of Section 125(1) can only mean refusal to maintain her as the wife and not refusal to maintain as a woman an only. A wife is entitled to be maintained with dignity of a wife and as Justice Fazl Ali said in AIR 1981 SC 1972 (Sirajmohmedkhan Janmohamadkhan v. Hafizunnias Yasin Khan and Anr.), the salutory provisions of the Code are not merely meant to provide a wife with food, clothing and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband. The immortal bird of India, Kalidass brought out through the lips of King Aja in Raghubansam the concept of a wife as "Gruhini Sachiba Sakhi Mitthah, Priya Shisya.........", i.e. that the wife is a partner to the husband and is his advisor, his friend and his dearest disciple. If the wife is not maintained with that dignity and status and that position is conceded to someone else, it must become justifiable for the w.i. e. to refuse to concede to a subordinate place in his life. It would hence be logical to hold that if the husband during the life time of a wife contracts a second marriage, she would ipso facto be entitled to maintain petition for maintenance while refusing to live with him. Such position has also been reiterated in AIR 1987 SC 1103 (supra) and I find support for the same from AIR 1966 Bombay 48 (Tejabai v. Shankarrao Baswanappa), This submission of Mr. Dhal hence must fail.
5. The other submission of Mr. Dhal needs consideration. The compromise between the parties was effected on 21-8-1969 and the opp. party No. 1 lived with the petitioner since then. O P.W. 2 is the son of the petitioner and the opp. party 1. He gave his age as 18 while deposing on 2-3 1990 and stated that five years after his birth the petitioner married for the second time. That would mean the second marriage to have taken place in 1977. The date of separation between the petitioner and the opp. party No. 1 giving rise to the present petition is 10-4-1989. It would hence mean that the opp. party No. 1 has lived with the petitioner acknowledging the presence of the second wife for about 12 years. The opp. party No. 1 no doubt filed the case alleging the second marriage of the petitioner as if it had taken place recently before her having been driven out, but from the records the fact appears to be otherwise, O.P.W. 2 stated in his evidence that the opp. party No. 1 left with his sister one year back when his father was not at home and was serving at Calcutta. He had gone to call his mother but she had refused to return. His father never ill-treated or neglected his mother or sister at any time. While this was the statement of O.P.W. 2, the opp. party No. 1 examined as PW-1 maintained that she has filed the petition as the petitioner was refusing to maintain her and the daughter and since he had married for the second time, he was not taking her with him. Since the second marriage in fact took place long back, obviously that was not a recent cause of action for the opp. party No. 1 to have come before the Court. She did not state in her petition of any harassment or ill-treatment but has exclusively based her claim upon only the second marriage of the petitioner. She however complained in the petition of having been driven out by the petitioner whereas it is the case of the petitioner that she was never thrown out and that he is willing to maintain her as she was being maintained earlier. Both the Courts below have decided the case allowing her claim for maintenance only upon the fact of the second marriage of the petitioner without going into the further question as to whether she was in fact driven out of the house.
6. A cause of action to maintain petition under Section 125, Cr.P.C. must be an event in presenti. The substance of the section is refusal to maintain. Hence even conceding that the second marriage tentamounts to non-maintenance, yet if the facts show that the wife by her conduct had condoned the conduct of the husband and was willingly living with him as a wife, without anything else the same cause of action to be pursued years after, after it has become stale, would not enure to her benefit to push it as a whipping cord against the husband at any time she whims it. She undoubtedly had a right to file a petition as soon as the second marriage was contracted or at any time thereafter if she came with the complaint before the Court of her status, position or dignity having been imperilled by any recent event. There is no such allegation in the present case and instead she has based her case upon the fact of her having been driven out by the petitioner, a fact which has not been investigated by the Courts below. As regards the view that the refusal to maintain must be a fact found to have presently occurred, support can be drawn from 1972 Cri .L.J. 1270 (Chand Begum v. Hyderbaig) where Justice Chinnappa Reddy observed :
"It is important to note, having regard to the expression "neglects or refuses" occurring in Section 488(1) [corresponding to present Section 125(1)] that the neglect or refusal must be in presenti, that is, at the time of the proceeding before the Magistrate. That is why even a husband who is guilty of neglect or refusal to maintain the wife in the past is permitted to make an offer to maintain a wife as if she lives with him. That is why a wife who has wilfully stayed away from her husband in the past may also claim to be maintained by her husband. The husband must then decide whether to take the wife back and maintain her or face an order under Section 488 (1)."
7. In that view of the matter, the petition is allowed and the case is remanded to the Court of the S.D.J.M. Bhadrak to find out, in view of the position of law indicated, as to whether in fact the opp. party No. 1 was driven out of the house by the petitioner as alleged in the petition under Section 125, Cr.P.C. and decide the case in accordance with law.