Orissa High Court
Sriram Manikyama And Anr. vs Sriram Appoji on 23 March, 1991
Equivalent citations: 1992CRILJ1794
ORDER D.M. Patnaik, J.
1. This is a revision by the petitioner against the order dated 19-10-1987 of the Additional Sessions Judge, Parlakhemundi, who partly allowed the order of maintenance granted by the Sub-Divisional Judicial Magistrate, Parlakhemundi.
2. The case in brief. Petitioner No. 1 is the wife and petitioner No. 2 is the son of the opposite party. Petitioner No. 1 filed a petition under Section 125 of the Code of Criminal Procedure before the Sub-Divisional Judicial Magistrate, Pumlakhemundi, claiming that her marriage with the opposite party took place in or about the year 1974. Sometime thereafter, a son was born out of the wedlock. After the birth of the son, the opposite party and his parents demanded further dowry of gold from the parents of the petitioner to which she refused and, therefore the opposite party and his family members started beating and illtreated her and thus she was forced to leave the matrimonial house.
The opposite party in the show-cause denied the allegation of illtreatment. He also denied about the driving of petitioner No. 1 from his house. In a counter-allegation his case was, the petitioner No. 1 herself deserted and while leaving the house, she took away gold ornaments worth rupees five thousand from the house of the opposite party. The opposite party although approached several times, petitioner No. 1 did not join him with the son despite the opposite party gave out although that he was willing to take them back.
3. The learned Sub-Divisional Judicial Magistrate upon hearing both sides, allowed the petition and directed the opposite party to pay maintenance at the rate of Rs. 200/- to petitioner No. 1 and Rs. 100/- to petitioner No. 2 per month from the date of application. Being aggrieved by the order, the opposite party preferred appeal before the learned Additional Sessions Judge, Parlakhemundi, who by the impugned order set aside the order of maintenance of Rs. 200/- to petitioner No. 1, but maintained the order so far as petitioner No. 2 is concerned.
Hence the revision by the wife.
4. I have gone through the orders of both the courts below and the evidence led.
P.W. 1 is petitioner No. 1. She stated in her evidence that the opposite party never approached to take her back. She also stated that the opposite party and his parents illtreated her and demanded more dowry of gold but, it seems, there has been no cross-examination from the side of the opposite party.
P.W. 2 is the co-villager of the opp. party. He stated about the demand of dowry by the opposite party. He also stated that petitioner No. 1 was driven out of the matrimonial house. Though he admitted to be in the hostile group, yet he has not been put any question in the matter of demand of dowry.
P.W. 3 is the father of the petitioner No. 1 who supported the case and there is no cross-examination on the question of demand of dowry.
The opposite party examined himself as O.P.W. 1. In the examination-in-chief, he stated that about two years back (i.e. in 1985) petitioner No. 1 left his house out of her own accord but, it is peculiar to note that the opposite party in his evidence in chief did not even deny the allegation of demand of dowry made by petitioner No. 1. It is surprising to note that although in the cross-examination he stated that both of them enjoyed ten year's conjugal life, but could not explain why his wife left the house. There is no case from the side of the opposite party giving a cogent reason as to why the wife left the house out of her own accord. The opposite party did not come forward with a case that the wife was garrulous, unchaste, incorrigible or that she did not like the in-laws of the opposite party. The opposite party also did not come forward with any explanation as to why petitioner No. 1 left the house, even, if accepting for sake of argument, that she left the house out of her own accord, therefore, it rather strikes to sense that there must be truth as to what petitioner No. 1 alleges in the petition. It is also peculiar to note that O.P.W. 2 who happens to be the own maternal uncle of the opposite party could not say why petitioner No. 1 left the house.
5. The learned Additional Sessions Judge disallowed the maintenance of petitioner No. 1 for the reason that he disbelieved the evidence of P.W. 2 since this witness admitted to be in the rival group of the opposite party, secondly the learned Additional Sessions Judge observed that no reason was assigned by petitioner No. 1 as to why she did not examine any independent witness, thirdly the silence of the wife for eight years in not bringing the matter to the court and lastly she did not assign any reason as to why she did not join her husband even after receiving the notice from the opposite party under Ext. A.
6. I do not find the reasons recorded by the learned Additional Sessions Judge to be sufficient to over throw a case for maintenance. I have already indicated the evidence in this regard. Petitioner No. 1 came up with a positive case of illtreatment on account of demand of further dowry to which she refused and, therefore, she was illtreated. I have observed that in the cross-examination from the side of the opposite party nothing has been put or elicited or even claimed that the allegation of demand of dowry was false. To add to this there to no case from the side of the opposite party as to why petitioner No. 1 left the matrimonial house after both having enjoyed a conjugal life for a considerable period.
The provisions of Section 125, Cr.P.C. is a measure for social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 as has been held in the decision reported in AIR 1978 SC 1807 : 1979 Cri LJ 3,. Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal.
7. For the reasons stated above, the impugned order of the learned Additional Sessions Judge is set aside. The revision is allowed. The order of the S.D.J.M. awarding maintenance is confirmed. The L.C.R. be sent back forthwith.