Madras High Court
Kanchana vs R. Asokan on 2 February, 1996
Equivalent citations: 1997CRILJ1986, I(1996)DMC664
ORDER
1. This revision has been preferred by the petitioner/wife against the order passed by the learned Judicial Magistrate, Ambur, North Arcot Ambedkar District in M.C. No. 7 of 1992, dated 25-9-1992, dismissing the petition in so far as the petitioner is concerned.
2. The petitioner filed the petition under Section 125 Cr.P.C., against her husband, the respondent herein, claiming maintenance for herself at Rs. 300/- per month and for her child at Rs. 200/- per month. The case of the petitioner is that on 5-12-1986 the respondent married the petitioner and out of the wedlock, a son by name Rajathilak was born in the year 1988 and subsequently she was subjected to cruelty by the respondent/husband and as she was unable to bear the same, started to live with her parents along with her child. Thereafter, the respondent/husband has developed illicit intimacy with one Lalitha and in the year 1991, a child was born to the respondent through the said Lalitha and as the petitioner is not able to maintain herself as well as her child born through the respondent/husband, filed the case for maintenance at the rate stated above.
3. The respondent/husband filed the counter in the above maintenance case, stating that the petitioner/wife had deserted him and he had no connection with the said Lalitha and that he is prepared to take his wife and child back to live with them and as such the petitioner is not entitled to any maintenance.
4. On the side of the petitioner two witnesses were examined and Exs. P1 to P3 marked. The petitioner/wife has been examined as P.W. 1, P.W. 2 Anandaraj, is related to the petitioner/wife, who corroborates the evidence of P.W. 1 and supported the entire case projected by the petitioner/wife. The respondent/husband examined himself as R.W. 1 on his side and deposed, denying her case prosecuted by the petitioner/wife. After considering the entire evidence, learned Judicial Magistrate, though granted maintenance to the child, rejected the claim of the petitioner/wife on the following reasons :-
(a) That though in the evidence P.W. 1 the petitioner/wife speaks about the cruelty, she did not mention the same in the petition.
(b) That though the case of the petitioner/wife is that the respondent/husband and one Lalitha are living as husband and wife, she has not proved the second marriage and even she did not file any complaint against the respondent/husband under Section 494 I.P.C.
5. Heard learned counsel for the petitioner and respondent.
6. As regards the first reason, under which the claim of the revision petitioner has been negatived by the Court below, learned counsel for the revision petitioner submits that it is not correct to observe that there is no reference about the cruelty in the petition, when there is a specific reference in the petition that the revision petitioner was completely neglected by her husband, the respondent and he did not allow her to live with him either at Kolar Gold Field or at Bangalore, where he was employed. More details have been given by P.Ws. 1 and 2 while they were in the witness box, as to how P.W. 1, the petitioner was neglected and subjected to cruelty by the respondent/husband.
7. With regard to the second reasoning, counsel for the revision petitioner submits that failure to prove the second marriage cannot be a ground to dismiss the maintenance petition, inasmuch as Section 125(3) Cr.P.C. contemplates that the evidence to show that the husband is keeping a mistress, while the first wife is alive, can be the sufficient ground for claiming maintenance. Learned counsel for the petitioner has drawn my attention to the explanation found in Section 125(3), which reads thus :-
"If a husband has contracted marriage with another women or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him".
On the basis of this explanation, counsel for the revision petitioner submits that the order of the learned Judicial Magistrate, dismissing the petition for maintenance in so far as the petitioner/wife is concerned, on the ground that the second marriage was not proved, is illegal, perverse and liable to be set aside. Further more, he submits that the revision petitioner/wife has adduced proper evidence before the Court below, that she is unable to maintain herself as well as her child born through the respondent. The respondent has not disputed regarding his monthly income and his employment as stated in the petition. Learned counsel for the respondent has made several submissions, justifying the grounds on which the claim of the petitioner for maintenance was rejected by the Court below.
8. I have carefully considered the submissions made by the respective parties, and gone through the order passed by the learned Judicial Magistrate and the other records. It is important to note, that there is no finding in the order of the Magistrate, regarding the reliability of the evidence adduced by the petitioner. As a matter of fact, P.W. 1 has specifically deposed with reference to the keeping of the mistress by the respondent. Curiously, she has not been cross-examined on this aspect. In the absence of any finding with regard to the reliability of the evidence adduced on the side of the petitioner, there is no difficulty in coming to the conclusion that the petitioner has proved her case that the respondent is living with another girl as spouse. In the light of Explanation to Section 123(3) Cr.P.C., the observation of learned Judicial Magistrate in his order dated 25-9-1992, that the petitioner is not entitled to maintenance, because the respondent is ready to take her back is quite preposterous. It is unfortunate that the learned Judicial Magistrate has not understood the concept of Section 125 Cr.P.C., and has over-looked the explanation as contained in Sec. 125(3) Cr.P.C.
9. In Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal, 1979 Mad LJ (Cri) 373 : (1979 Cri LJ 3), the Supreme Court while dealing with Section 125 Cr.P.C., has observed as follows :-
"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that Sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts."
10. In that view, I have no hesitation to accept the submissions made by Mr. S. Senthilnathan, learned counsel for the revision petitioner. As such the order of the learned Judicial Magistrate is quite illegal, perverse, which warrants interference by this Court.
11. For the reasons discussed above, the order of learned Judicial Magistrate, Ambur, North Arcot Ambedkar district in M.C. No. 7 of 1992, dated 25-9-1992, dismissing the petition in so far as the claim of the revision petitioner is concerned, is set aside. The revision is allowed. The respondent/husband is directed to pay maintenance to the petitioner/wife also at the rate of Rs. 300/- per month from the date of filing of M.C. No. 7 of 1992 before the Court below.
12. Revision allowed.