Allahabad High Court
Mithlesh Kumari vs Bindhawasani And Anr. on 13 December, 1988
Equivalent citations: 1990CRILJ830, I(1991)DMC360
JUDGMENT G.B. Singh, J.
1. This Criminal Revision is against the judgment and order dated 20-1-1983 of IV Additional Sessions Judge, Faizabad allowing the Criminal Revision preferred against the judgment and order dated 11-5-1982 passed by the Munsif Magistrate, Sitapur, Faizabad in a case under Section 125, Cr.P.C.
2. Smt. Mithlesh Kumari revisionist is wife of Bindhawasani opposite party 1. Their marriage was undisputedly celebrated on 1-3-1979. It is undisputed that in the month of July, 1980 a daughter was born to Smt. Mithlesh Kumari. Smt. Mithlesh Kumari filed petition for maintenance under Section 125, Cr.P.C. on 25-5-1981 claiming it at the rate of Rs. 300/- per mensem for herself and the minor daughter. It was filed on the allegations that Bindhawasani and his family members used to pass taunts for bringing less dowry and used to ill-treat her. Bindhawasani was always pressing her to ask her father to give him one Scooter otherwise he would have second wife. When the daughter was born, the petitioner fell ill but her husband did not make any proper arrangement for her medical treatment and sent her to father's place for it. When the petitioner recovered, her father sent an intimation to her husband and his family members to take the petitioner to their house but none came due to which her father himself took her to her husband's place and left her there. The opposite party again pressed his demand for Scooter. Her father showed his inability to give Scooter thereupon the opposite party threatened for his second marriage and turned her out of the house. The opposite party thereafter contracted second marriage on 6-5-1981 and the petitioner and her minor daughter are living at her father's place. The opposite party, thus, neglected and refused to maintain the petitioner though he has sufficient means and the petitioner and her minor daughter are unable to maintain themselves.
3. The opposite party contested the claim for maintenance. He pleaded that he lives in a village along with his family members and does not possess sufficient means. The petitioner belongs to a well to do family. Her father is a Driver and lives in Maudaha town district Faizabad. He owns Pakka house and 8 rooms of his house are on rent, The petitioner has no liking for living in a village and does not take interest in doing domestic work. She started pressing soon after the marriage that he should live along with her in Maudaha town to which he did not agree. She is, therefore, living in Maudaha town out of her own accord and she is not entitled to any maintenance. He made several attempts to bring the petitioner to live in his house but she did not come. The allegations of ill-treatment and demand of dowry and contracting second marriage were denied. It was also pleaded by him that he is prepared to maintain her if she live with him in his house.
4. The petitioner examined herself as P.W. 1 and examined five witnesses, namely, Uma Shanker P.W. 2, Ram Sunder P.W. 3, Bihari Lal P.W. 4, Arjun Prasad P.W. 5 and Gokal Prasad P.W. 6. Bindhwasani opposite party, on the other hand examined himself as D.W. 2 and one witness Hari Lal D.W. 1. The learned Magistrate believed the case of the petitioner allowed the application and awarded maintenance at the rate of Rs. 200/- per mensem to the petitioner and Rs. 100/- per mensem to her minor daughter. Against this decision the opposite party preferred revision before the Sessions Judge which was allowed and the order passed by the learned Magistrate was set aside. The petitioner has thereafter filed the present revision.
5. It was firstly argued by the learned counsel for the revisionist that the finding of the learned Magistrate about the second marriage of Bindhawasani opposite party was on an issue of fact and should not have been interfered with in revision by the learned Additional Sessions Judge. I do not find much force in this contention. It is true that in revision the conclusions of fact based on evidence cannot be canvassed and attacked on the footing of an appeal and the Court of revision should not ordinarily look into the evidence to see whether finding is correct or the evidence is sufficient in support of it but if the finding is perverse and miscarriage of justice has occurred the Court of revision in order to do justice can enter into evidence of fact and interfere with the finding of fact. In the present case the learned Magistrate did not appreciate the evidence correctly and arrived at a finding about second marriage which was perverse on the face of it. It was alleged in the petition for maintenance that Bindhawasani has contracted second marriage with one Muoni daughter of Salik Ram Jaiswal. In evidence also she made statement to the same effect. Her father Bihari Lal (P.W. 4), however, stated that the second marriage has been contracted with the daughter of one Hira Lal and she is granddaughter of Salik Ram. On further cross-examination he stated that lie does not know if Salik Ram is father of Hira Lal or is his uncle, Ram Sunder (P.W. 3) is resident of the village of Bindhawasani. He, however, did not state whose daughter was married to Bindhawasani as his second wife. Arjun Prasad (P.W. 5), however, stated that Hira Lal has married his daughter to Bindhawasani Prasad as his second wife. In cross-examination he stated that Hira Lal is real brother of Salik Ram. He does not belong to the village of Hira Lal or Salik Ram not he resides in the village of the opposite party. He appears to be a tutored witness. Gokul Prasad (P.W. 6) claims himself to be a Taxi Driver. He also does not appear to have any definite knowledge about the second marriage of the opposite party though he pretends that he brought the second wife on his Taxi. The evidence led by the petitioner to prove the second marriage of the opposite party, therefore, stood self-condemned and was rightly rejected by the learned Additional Sessions Judge. Hira Lal (P.W. 1) is a resident of the village Nanhey Mau where the second marriage of the opposite party is said to have taken place. He denied the second marriage of the opposite party in his village. He further stated that Hira Lal is his real brother and that the latter is married and has no issues. It was also stated by him that no person of the name of Salik Ram lives in his village. Bindhawasani (P.W. 4) also denied his second marriage on oath. It is, therefore, evident that the case of second marriage was not at all proved and the learned Additional Sessions Judge rightly interfered with this finding in revision.
6. The second point pressed by the learned counsel for the petitioner is that there was neglect or refusal on the part of the opposite party to maintain the petitioner and the finding of the learned Additional Sessions Judge to the contrary is based on no evidence and, thus, deserves interference in revision. I find much force in this contention. There are certain circumstances which are material in this connection. It is a common case that the petitioner is living in her father's house along with her minor daughter since December, 1980. The marriage of the petitioner with the opposite party was celebrated about 20 months before separate living. It is a matter of common experience that the Indian women do not like to live in their father's house after their marriage. Their natural conduct is that they prefer to live in their husband's house unless there are some compelling reasons forcing them to live away from their conjugal home. The petitioner and her father Bihari Lal (PW 4) stated on oath that the opposite party and his family members were making persistent demand for scooter in dowry which could not be given due to which the petitioner was being ill-treated and physically assaulted, their statement appears natural and credible in the aforesaid background. Bindhawasani (PW 2) opposite party simply stated in his deposition that there was no dispute between the parties regarding scooter. He, however, failed to deny that the petitioner was no ill-treated and physically assaulted in connection with dowry and he never pressed for scooter. Thus, the evasive denial of the opposite party clearly shows that the deposition of Smt. Mithlesh Kumari (PW 1) and Bihari Lal (PW 4) could not be rejected by the learned Additional Sessions Judge. It may also be added here that the statements of these witnesses get support from the testimony of Ram Sunder (PW 3) who is a resident of the village of the opposite party. Thus, the petitioner has proved that she had been ill-treated by the opposite party and his family members and there had been persistent demand of dowry from them.
7. The opposite party does not state that he made any arrangement for maintenance of his minor daughter who is undisputedly living with the petitioner. He does not state in his deposition that he ever made any serious effort to bring the petitioner and his minor daughter to his house. Thus, the neglect and refusal to maintain on the part of Bindhawasani opposite party appears established from the oral evidence and the circumstances of the case. The learned Additional Sessions Judge without assigning any reasons held that there had been no neglect or refusal to maintain. Such a finding being based on no evidence, therefore, deserves interference in revision and the argument of the learned counsel for the revisionist is, therefore, prevails.
8. It may be mentioned that neglect or refusal can be inferred from words and conduct of the husband. If there is justification for refusal to live separately, 'neglect' can be inferred. In the present case the oral evidence on record shows that the petitioner had been ill-treated in the house of her husband. The statements of the petitioner and her father Bihari Lal (PW 4) and Ram Sunder (PW 3) show that she was not only mal-treated but was turned out of her conjugal home by her husband. Bindhawasani (PW 2) did not deny this fact specifically in his deposition. During the period the petitioner stayed at her father's place Bindhawasani did not offer or send her any maintenance allowance for her and the minor daughter. These circumstances are sufficient to lead (sic) that there was neglect and refusal to maintain on behalf of the opposite party and she could justify her living in her father's place.
9. The third point argued by the learned counsel for the revisionist is that the learned Additional Sessions Judge interfered with the order of the learned Magistrate awarding maintenance allowance at the rate of Rupees 100/- per mensem for minor daughter without assigning any reason. There is much force in this contention. He has not assigned any reason for refusing maintenance to the minor daughter. At the time of arguments learned counsel for the opposite party conceded that the learned Additional Sessions Judge interfered with this portion of the order of the learned Magistrate without assigning any reason. It was, however, argued by the learned counsel for Bindhawasani, opposite party that since he has made an offer to maintain her provided she lives with him and the second marriage has not been proved, the petitioner cannot claim maintenance from his client. I find myself unable to agree with this argument. It is true that the wife has no absolute right of maintenance where husband offers to maintain his wife of condition of her living with him but she can claim maintenance if there is just ground for her refusal to live with the husband. It has been held in Siraj Mohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, 1981 Crl. LJ 1430 (SC) in para 20 :
"......where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband's parents or relations, such apprehension also would be manifestly a reasonable justification for the wife's refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive."
10. In the present case the petitioner has reasonable apprehension from the conduct of her husband that she is likely to be physically assaulted and mal-treated due to persistent demand of dowry from her husband. She has, therefore, a reasonable justification for her refusal to live with her husband. Thus, even though the petitioner had not been able to prove the second marriage, she is entitled to maintenance under Section 125, Cr.P.C.
11. Now the question of quantum of maintenance remains for consideration. It was argued by the learned counsel for the revisionist that the order passed by the learned Magistrate awarding Rs. 200/- per mensem to the petitioner and Rs. 100/- per mensem to her minor daughter may be restored. This argument appears acceptable in the circumstances of the case. The learned Magistrate fixed the aforesaid amount keeping in view the material placed before him. The opposite party and his father own sufficient agricultural land. The opposite party is the only son of his father. All his sisters have been married. The petitioner has stated that her husband carries on money lending business and earns about Rs. 3000/- or 4000/- per mensem. The opposite party has, on the other hand, failed to make any clear statement about his monthly income. It has also not been denied by him that he does not carry on any money lending business. The extracts from Khetauni filed in the case support the statement of the petitioner. It is, therefore, evident that the opposite party has sufficient means to maintain the petitioner. In fixing the rate of maintenance the necessaries to be provided according to the status in life of the petitioner and the means of the opposite party are taken into account. It cannot be fixed on some hypothesis or abstract consideration. The capacity to earn and pay are also sometime kept in view. The petitioner has no independent source of income. The opposite party though alleged it in his written statement did not say a word about it in his deposition. Thus, the petitioner has no means of her own to maintain herself and the daughter. Keeping in view all these facts and the clearness which is prevailing these days, the amount awarded by the Magistrate to the petitioner and her minor daughter by way of maintenance appears reasonable.
12. The revision is, therefore, allowed and the order of the learned Additional Sessions Judge rejecting the application for maintenance is set aside. The order passed by the learned Magistrate awarding maintenance at the rate of Rs. 200/- per mensem to the petitioner and Rs. 100/- per mensem to her minor daughter is restored.