Bombay High Court
Chhagan Lal Devman vs State Of Maharashtra And Ors. on 19 September, 1989
Equivalent citations: I(1990)DMC533
JUDGMENT W.M. Sambre, J.
1. Aggrieved by the Judgment and Order dated 3-12-1986 passed by Additional Sessions Judge, Akola in Criminal Revision No. 213/85 reversing the order of J.M.F.C. in Misc. Criminal Case No. 7/85, applicant has filed this revision.
2. It is the case of the applicant that the non-applicant No. 2 was residing with the applicant for 4 years and thereafter she herself suo-moto deserted him. Mr. Mohta, learned counsel for the applicant contended that the non-applicant No. 2 Ashabai was a lady of bad character. She was having illicit relation with one Dilip. He has contended that for four years they were having good relations. Two children were born to them and thereafter when she was pregnant for four months, she was assaulted by the applicant and he tried to pour kerosene on her person. This was the reason that she went to her father. It is contended that the applicant was annoyed by the conduct of the N.A. No. 2 as he saw that children were crying at home and Asha had been to the house of Dilip, which is adjacent to his house. When he accoster her, she replied arrogantly that the applicant should not put this question. On this, applicant gave 3/4 slaps to Asha and tried to pour keresene on her person, which was witnessed by Purnibai, mother of Dilip, who was the next door neighbour.
3. The counsel for the applicant has contended that this conduct of Asha was taken cognizance of by the learned Magistrate and the Trial Court has come to the conclusion that Asha is a lady of bad character. She herself has deserted her husband. She is living in adultery and as such he declined to grant her maintenance. The learned Magistrate has come to the conclusion that the child born to Asha at her parents' house was that of Chhaganlal. It is pertinent to note that she was driven away in the month of May, 83 by the applicant when she was pregnant for four mouths, Thereafter she stated that her parents waited for a year and served a notice on the applicant to pay her maintenance. After receipt of the said notice, applicant filed a case for divorce. The learned Magistrate has further held that the child which was born to Asha is only entitled to the maintenance of Rs. 50/-. He discussed the evidence of all the witnesses and further held on the basis of the evidence of PW 1 Trivenibai that the wife of applicant was of bad character. Trivenibai was residing with the applicant who was his cousin sister. She always charged Asha and tried to harass her. AW 2 Prayanbai who is also her neighbour has stated that she bad been to the house of the applicant and Trivenibai told her that Asha is a lady of bad character and is having illicit relation with Dilip. In her cross-examination, she has stated that when she entered the house of the applicant, it was found that Asha was unconscious. She has stated that she did not see the incident of beating. It has also come on record that Pranayabai who is the mother of Dilip and applicant is cousin brother of her son Dilip. She has also stated that Dilip was on talking terms. The learned Magistrate has observed that she has also admitted that she had told once to the applicant about the illicit relation of non-applicant No. 2 with Dilip. This observation of the learned Magistrate are verified from the evidence of Pranayabai and it was found that no such statement has been made by Pranayabai that Asha was having illicit relation with Dilip. This shows that the learned Magistrate has not properly applied his mind to the evidence on record while coming to the conclusion and delivered the Judgment. The learned Magistrate has held that she was living in adultery when in fact there is no evidence to that effect. All these observations made by the learned Magistrate has been rightly discarded by the learned Sessions Judge on the basis of the appreciation of evidence. The learned Magistrate has distorted the version of the witnesses to arrive at a wrong conclusion with a specific intention to deprive the lady for grant of maintenance.
4. The learned Sessions Judge has considered this aspect and dealt with each one threadbare. The observations of the learned Magistrate that the non-applicant No. 2 Asha failed to establish illtreatment at the hands of the non-applicant. As her evidence is also liable to be assailed. It is apparent from the conduct of the applicant that when she came from the house of Pranayabai, he slapped her thrice and thereafter poured kerosene on her person. This incident was witnessed by many persons. Pranayabai visited her house and Asha was found lying unconscious. It has also come on record that prior to this also on various occasions, applicant bad illtreated her. From the conduct of the applicant, it appears that he was suspicious about her character and therefore, he used to treat her from that angle. The incident of coming out of the house of Dilip was the last incident when she was beaten by the applicant and thereafter he sent her to her parents' house with four months pregnancy. The applicant spoke about her illicit relations with Dilip to many persons. It has also come on record that the applicant has narrated this relationship to Pranayabai, mother of Dilip. The learned Sessions Judge has come to the conclusion that one incident of coming out of the house of Dilip cannot be said to be the incident of adultery. On the basis' of this single instance, she cannot be charged for the adultery. Even it has come on record that nobody has seen that she was found in the house along with Dilip. As such, the observations and the conclusion arrived at by the learned Magistrate has been rightly discarded by the learned Sessions Judge and the charge about adultery was also held not to be proved. It is pertinent to note that when she was compelled to go to her parents' house, she was having 4 months pregnancy. Prior to that she had already delivered two children from the applicant, who are residing with him. The third child was born to her after May, 1983. She sent messages for her maintenance and thereafter sent a notice in the month of June, 1984. On receipt of the said notice, it appears that the applicant was annoyed and therefore, be filed divorce case in the month of July, 1984 against non-applicant No. 2. It is pertinent to note that the claim of the applicant for maintenance, which was denied to her by the learned Magistrate has been rightly granted by the learned Sessions Judge. The observations of the learned Sessions Judge that no case for adultery has been made, out as for establishing adultery, a series of incidents are required to be placed on record. Hear say evidence is of no consequence. He placed reliance in support of his contention on 1980 Cr. Law Journal 354. As stated above that there is not a single instance which can be attributed to the non-applicant No. 2 Asha against her that she was living in adultery. I am of the view that the observations of the learned Sessions Judge that this finding on the part of the learned Magistrate is improper, illegal and the same is liable to be quashed and accordingly, learned Sessions Judge has quashed the said finding of the learned Magistrate and has come to the conclusion that the non-applicant No. 2 Asha is entitled to receive maintenance from the applicant.
5. As regards the quantam, the learned counsel for the applicant has contended that there is evidence on record that the applicant is having landed property. The learned Sessions Judge has come to the conclusion that the applicant is living with his father and is having a joint family. He has 22 Hects. of land. The learned counsel for the applicant has contended that these observations of learned Sessions Judge is without any substance. Nothing has been placed on record that the applicant has share in the said property. It is pertinent to note that the applicant and his wife were living with his father who is having 22 Hects. of land and on the basis of the calculation made by the learned Sessions Judge that the earning of the applicant must be around Rs. 800/- per month and has granted Rs. 200/- per month to the wife as maintenance and Rs. 100/- per month to the son Nilesh, who is born to them out of their wedlock. The amount of Rs. 50/- per month granted as maintenance to a child is found to be insufficient by the learned Sessions Judge. As such, learned Sessions Judge has rightly arrived at a conclusion that the non-applicant is entitled to Rs. 200/- per month as maintenance and the child is entitled to Rs. 100/-per month. The learned Sessions Judge has granted this maintenance from the date of the order passed by the learned Magistrate i.e. from 4-9-1985.
6. In view of above discussion, the applicant is hereby directed to pay Rs. 200/- per month to the wife i.e. non-applicant No. 2 and Rs. 100/-per month to the son Nilesh. The applicant is also directed to pay all the arrears before the end of December, 1989 and should also pay Rs. 300/-towards the costs of this litigation within 2 months. With the above directions, criminal revision stands disposed of.