Orissa High Court
Saraswati Meher vs Jadumani Meher on 16 May, 1986
Equivalent citations: 1986(II)OLR55
JUDGMENT P.C. Misra, J.
1. This is a revision challenging the order of the Sub divisional Judicial Magistrate, Bargarh passed on the petitioner's application Under Section 125 of the Criminal Procedure Code. She filed the said application Under Section 125 of the Criminal Procedure Code claiming maintenance at the rate of Rs. 250/--per month from the present opp. party on the ground that she is his wife and that she has been neglected to be maintained by him.
2. The petitioner alleged that she married the opp. party in accordance with their caste and custom and they lived as husband and wife for some years. Gradually the opp. party and his mother illitreated the petitioner and she was assaulted on many occasions. She was not. liked in the family of her in-laws, as no child was born to her. In course of time ill-treatment reached at such a stage that it became impossible on her part to tolerate. In the middle of the year 1981, she was assaulted by the opp. party by which her left eye was affected for which no treatment was carried on at the instance of the opp. party. It is the brother of the petitioner, who took her to the hospital where she became an .Indoor patient from 6-6-1981 to 12-7-1981, but the treatment could not save her eye. After being discharged from the hospital, she was taken to the house of the opp. party but the opp; party refused to accept her and did not allow her to remain in his house. Since then the petitioner has been residing with her mother. It has been further alleged that all attempts for a reconciliation have failed at the instance of the opp. party. The petitioner had sent a notice on 19-1-1982 to the opp. party through her Advocate and there was no response by the opp. party to the same According to the petitioner the opp. party has married again to one Samari Meher, daughter of Dasarath Meher on 5-4-1982 and they have been living as husband and wife. It has been alleged that the opp party is a business man, whose monthly income is about Rs. 700/- out of which the petitioner claims Rs. 260/- per month as maintenance.
3. The opp. party in his objection against the said application denied all her allegations. The opp. party admitted that he had been living with the petitioner, as husband and wife though there was no legal marriage between them. He denies to have assaulted the petitioner. He further admits that the petitioner was blind by her left eye which was not a result of the alleged assault. It is alleged that she was teased by the villagers for her physical deformity which she could not bear and left the village. It is stated that the petitioner is not entitled to any maintenance as she has been working and earning sufficient money to meet her maintenance. The opp. party denied the second marriage and maintained that he is willing to take the petitioner back, provided the latter Is willing. He expressed his inability to maintain the petitioner in the aforesaid facts and circumstances and prayed for dismissal of the application.
4. Both parties led evidence in support of their respective cases. The learned S. D. J. M. in the impugned judgment came to hold that the petitioner is the legally married wife of the opp. party but dismissed the prayer for grant of maintenance on the ground that the plea of ill-treat-inent has not been proved and that the petitioner herself is capable of and in fact earning her own livelihood. The said finding regarding the status of the petitioner as the mawied wife of the opp party is not seriously disputed, in view of the admission in the objection filed by the opp. party In the Court below that he had been living with the petitioner as husband and wife for many years. Reading of the evidence adduced in the case by the petitioner would lead to an irresistible conclusion of their legal relationship as husband and wife. The plea of the opp. party that both were living together without a legal marriage must be discarded
5. The only question which remains to be decided is whether the petitioner is entitled to maintenance Under Section 125 of the Criminal Procedure Code. The said section deals with the powers of a Magistrate of the First Class to order payment of maintenance to the wife, and other dependants mentioned therein under certain circumstances. Once toe relationship of husband and wife is established, it is obligatory on the part of the husband to maintain the wife and other dependants enumerated in the Section Sub-section 4 of that section, however, provides that no wife shall be entitled to receive any maintenance from her husband if she is living in adultery or if without any sufficient reason she refused to live with her husband or if they are living separately by mutual consent. It is not a case of the opp. party that the petitioner has been living in adultery or that she has been living separately pursuant to any mutual arrangement. Therefore, in terms of the section the petitioner would be entitled to maintenance unless it is proved that she has refused to live with her husband without any sufficient reason.
6. The right of a wife for maintenance is an incidence of the status or estate of matrimony. According to the text of Hindu Law to which the parties belong, the obligation to maintain the wife arises from the very existence of the relationship between the parties Apart from the liability which the husband incures under the personal law of maintaining his wife, the provisions of this section (Section 125, Cr. P. C.) are independent of personal law or any custom governing the parties. The right to be maintained under this section is a distinct statutory right which has been recognised as the part of the law irrespective of the nationality or the creed of the parties. The only condition precedent for application of this section is the existence of the relationship of the petitioner with the opp. party as his Wife. AIl that is said in Sub-section 4 of Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','16545','1');">125, Criminal Procedure Code, is that a wife shall not be entitled to live separately from her husband without any justifying cause and claim maintenance from her husband. The justifying cause need not always be confined to ill-treatment or cruelty on the part of the husband.
7. The learned trial Court has not accepted the evidence adduced on behalf of the petitioner to prove that she was ill-treated by the opp. party mainly on the ground that the said fact has not been deposed to by the neighbours of she opp party. The learned S. D. J. M. does not appear to have been alive to the prevailing conditions of the society in which the wife is placed under many restrictions and is often rendered helpless. She does riot possess the right to communicate With the neighbours of her in-laws and at times such communication, if made, brings her further torture and harassment, it is equally difficult for a wife who has been living separately from her husband under compelling circumstances to examine the persons from the locality where the husband lives to support her cause. In fit cases therefore, it is permissible for a Court to rely even on the uncorroborated testimony of the wife, to grant her maintenance Under Section 125 of the Criminal Procedure Code, provided her evidence is truthful and believable.
8. In the application Under Section 125 of the Cr. P. C. there was categorical allegation by the petitioner that she used to be often assaulted by the opp. party and as a consequence of the assault in the middle of the year 198! one of her eyes was affected leading to her blindness by one eye. Though the said allegation was denied by the opp. party, nothing was disclosed in the objection as to how and when the petitioner lost one of her eyes or as to what treatment was carried on to save her eye. In this case the opp, party took a false plea that she was not his legally married when and did not breathe a word as to when and under what - circumstances her eye was lost. I do not find a grain of truth in the plea taken by the opp. party that she voluntarily left the house of the opp. party as she was teased by the villagers for having lost one of her eyes. Even if that be the case, it was the duty of the opp. party to protect her from any criticism because of her physical disability by the villager. The broad circumstances and the evidence adduced in the case do not make the aforesaid plea of the opp, party probable or believable. I would, therefore, conclude that the petitioner had sufficient justification to live separately from her husband and claim maintenance from him.
9. The learned Court below came to a finding, that the petitioner has been maintaining herself by her manual labour and for that reason she is not entitled to any maintenance. Having gone through the evidence I am of the view that the said finding cannot be maintained. The learned S. D. J. M in the impugned order has mentioned that he had noticed the hands of the petitioner to have stained with red colour suggesting that she has been working in colouring threads and was capable to maintain herself. Inability to maintain herself cannot be judged in the light of her capacity to make a living nor dees it mean that she should be absolutely a destitute so as to be entitled to the maintenance. Assuming that the petitioner has been doing some manual labour after being refused a shelter in her husband's place to make out a bare living, she would not forfeit her right to maintenance from her husband. In the facts and circumstances of this case, it is appropriate that the petitioner should be allowed maintenance.
10 As regards the quantum of maintenance it is in the evidence of the petitioner that the monthly income of the opp. party is about Rs. 800/-. The evidence of P. W. 1, who is a weaver and is engaged in similar work as the opp. party, shows that he earns about Rs. 160/- per week which comes to about Rs. 650/- a month. According to P. W. 4, who is also a weaver, the income of the opp. party is about Rs. 300/- per week. The opp. party, however, in his evidence claims to be earning Rs. 5/- per day O. P. W. 2 is the only witness, who corroborates the opp. party saying that he earns !Rs. 500/- to Rs. 7/- per day as a labourer. The evidence adduced on behalf of the petitioner appears to me to be more acceptable than that of the opp. party. The monthly income of the opp. party cannot be less than Rs. 5/- per month giving all allowances for the possibilities of exaggeration in the evidence adduced in the Court below. Considering the facts and circumstances of the case, I would hold that the petitioner would be entitled to Rs. 100'- per month as maintenance which should be effective from the date of the petitioner's application in the Court below.
11. I would, therefore, allow this revision and set aside the impugned order. But in the facts and circumstances of the case, there would be no order for costs of this Court.