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Badri NaraIn Vs. Laxmi Gehlot - Court Judgment

SooperKanoon Citation

Subject

Criminal;Family

Court

Rajasthan High Court

Decided On

Case Number

Criminal Revn. Petn. No. 5 of 1994

Judge

Reported in

2002CriLJ1976; II(2002)DMC472

Acts

Code of Criminal Procedure (CrPC) , 1973 - Sections 125 to 128

Appellant

Badri Narain

Respondent

Laxmi Gehlot

Appellant Advocate

M.C. Bhoot, Adv.

Respondent Advocate

M.L. Panwar, Adv.

Excerpt:


.....and, therefore, from this point of view, it should be held that she did not want to live with the petitioner-husband and, therefore, when she did not want to live with the petitioner-husband, she was not entitled to any maintenance. 6. it may be stated here that this court tried its best to make reconciliation between the parties, but all efforts went in vain, as is evident from the order sheet dated 28.8.1997. 7. before appreciating the contentions of the parties, in short, the object of sections 125 and 128, cr. he has clearly admitted that since august, 1980, he and his wife-respondent are living separately and in these circumstances, if any efforts were made by the petitioner-husband, they could not have been said to be bona fide and genuine efforts......husband should live in her parents' house as ghar jamai was not found proved by the learned judge.(2) that: the petitioner-husband had deserted his wife respondent.(3) that there is no evidence to prove the fact that the respondent-wife is living separately with her own accord.aggrieved from the said order dated 22.10.1992 passed by the learned judge, family court, ajmer, this revision has been filed by the petitioner-husband.3. in this revision the following submissions have been raised by learned counsel appearing for the petitioner-husband :(1) that the approach of the learned judge, family court was entirely wrong, inasmuch as, he has seen the case by first raising presumption that no hindu wife with a child would like to live separate from her husband and such presumption cannot be made on any basis and furthermore, he has discussed the case as if the burden of proof was only on the petitioner-husband.(2) that in para no. 6 of the application under section 125, cr.p.c, the respondent-wife has clearly alleged that in no circumstances she wanted to now live with the petitioner-husband and, therefore, from this point of view, it should be held that she did not want to live.....

Judgment:


ORDER

Sunil Kumar Garg, J.

1. This revision petition has been filed by the petitioner husband against the order dated 22.10.1992 passed by the learned Judge, Family Court, Ajmer in Crimmal Case No. 420/80 by which he partly accepted the application filed by the respondent wife under Section 125, Cr.P.C. and ordered that the petitioner husband would pay Rs. 1,000/- (Rs. one thousand only) as maintenance allowance to the respondent-wife and her daughter aged 12 years with the effect from 13.10.1998, the date of presentation of that application.

2. The necessary facts giving rise to this revision petition are as follows :

The respondent wife filed an application under Section 125, Cr.P.C, before the Family Court, Ajmer on 13.10.1988 alleging inter alia that she was married with the petitioner-husband on 23.6.1978 as per Hindu rites and ceremonies and out of that wedlock, on 13.4.1979, daughter, namely, Mamta was born and on 24.4.1988, another daughter Santosh was born, but unfortunately, Santosh died on 8.10.1985. It was further alleged in the application that after marriage, she lived with the petitioner-husband at various places, namely, Dhandra, Kota, and Jodhpur, but at all places, the petitioner-husband used to behave with her in a cruel manner and he used to torture, harass, beat and abuse her. It was further alleged in the application that in the month of February, 1980, the respondent wife was beaten by her husband petitioner and thereafter she was shunted out from the house and he was left by the petitioner-husband at Ajmer and since then, she started living with her parents. It was further alleged in the application that father of the petitioner-husband died.on 16.6.1980 and, thereafter, Jeeja of the petitioner-husband and brother of the petitioner-husband came to take the respondent-wife back and she went to Jodhpur and lived there till August, 1980. Thereafter she was again beaten by the petitioner-husband and the petitioner husband also threatened her that he would contract second marriage. Since the behaviour of the petitioner-husband was cruel and he had beaten the respondent wife so many times, therefore, it has been alleged by the respondent-wife in para No. 6 of the application that in no circumstances it was possible for her now to live with the petitioner-husband. The further case of the respondent-wife was that the petitioner-husband is a Senior Teacher in the Central School and is earning Rs. 3,500/- per month and on the contrary, she had no means to maintain herself and her daughter, and, therefore, she has claimed that she may be awarded maintenance allowance of Rs. 1,500/- p.m. for herself and her daughter.

The petitioner-husband filed a reply to the application filed by the respondent-wife under Section 125, Cr.P.C. on 2.2.1989 admitting the fact of marriage and also admitting the fact that two daughters were born, out of them, one had died and also admitting the fact that the respondent-wife was living with her parents house along with her daughter, but all the allegations pertaining to cruelty, beating, maltreatment and harassment have been denied by the petitioner-husband and he has also stated that he went twice to take respondent-wife back, but she refused to come. It was further alleged by the petitioner-husband that it was wrong to say that his monthly income was Rs. 3,500/-, but he was earning only Rs. 2,523/- p.m. He has further alleged that since 16.8.1980, the respondent-wife did not come to his house and she was doing knitting job and, therefore, she has sufficient means to maintain herself and her daughter. It was further alleged by the petitioner-husband that the main dispute between the parties was that respondent-wife wanted that the petitioner-husband should live in her. parents' house as Ghar Jamai, but it was not possible for him. Hence, it was prayed that the application filed by the respondent-wife under Section 125, Cr.P.C. be dismissed.

Thereafter, both the parties led evidence in support of their respective case. Four witnesses were produced by the respondent-wife and six witnesses were produced by the petitioner-husband.

After analysing the evidence of both the parties, the learned Judge, Family Court, Ajmer through his impugned order dated 22.10.1992 partly allowed the application of the respondent-wife in the manner as stated above holding inter alia :

(1) That the allegation that the respondent-wife wanted that the petitioner husband should live in her parents' house as Ghar Jamai was not found proved by the learned Judge.

(2) That: the petitioner-husband had deserted his wife respondent.

(3) That there is no evidence to prove the fact that the respondent-wife is living separately with her own accord.

Aggrieved from the said order dated 22.10.1992 passed by the learned Judge, Family Court, Ajmer, this revision has been filed by the petitioner-husband.

3. In this revision the following submissions have been raised by learned Counsel appearing for the petitioner-husband :

(1) That the approach of the learned Judge, Family Court was entirely wrong, inasmuch as, he has seen the case by first raising presumption that no Hindu wife with a child would like to live separate from her husband and such presumption cannot be made on any basis and furthermore, he has discussed the case as if the burden of proof was only on the petitioner-husband.

(2) That in para No. 6 of the application under Section 125, Cr.P.C, the respondent-wife has clearly alleged that in no circumstances she wanted to now live with the petitioner-husband and, therefore, from this point of view, it should be held that she did not want to live with the petitioner-husband and, therefore, when she did not want to live with the petitioner-husband, she was not entitled to any maintenance.

(3) That the findings of desertion are also erroneous one.

Hence, it was prayed that this revision-petition be allowed and the impugned order passed by the learned Judge, Family Court, Ajmer be set aside and the application filed by the respondent-wife under Section 125, Cr.P.C. be dismissed.

4. On the other hand, the learned Counsel appearing for the respondent-wife supported the impugned order passed by the learned Judge, Family Court, Ajmer. He has further submitted that the findings recorded by the learned Judge, Family Court are based on correct appreciation of evidence on record and in awarding maintenance allowance to the respondent-wife and her daughter, the learned Judge, Family Court has not committed any illegality and, therefore, no interference is called for with the impugned order. 5. I have heard the learned Counsel appearing for the petitioner-husband and the learned Counsel appearing for the respondent-wife and perused the record of the case.

6. It may be stated here that this Court tried its best to make reconciliation between the parties, but all efforts went in vain, as is evident from the order sheet dated 28.8.1997.

7. Before appreciating the contentions of the parties, in short, the object of Sections 125 and 128, Cr.P.C. has to be kept in mind.

8. Chapter IX of the Code of Criminal Procedure, 1973 contains Sections 125 to 128. These sections deal with maintenance to the wife, children and parents. These provisions are intended to fulfil a social purpose and provide a preventive remedy by way of payment to maintenance to the neglected wife, children and parents. The object is to compel a man to perform his moral obligations which he owes to the society in respect of his neglected wife, children and parents against starvation and to tide over the immediate difficulties.

9. The provision provides a speedy remedy against starvation by way of summary procedure. It is not co-extensive with the civil liability of a husband. It gives effect to the fundamental and natural duty of a man to maintain his wife. The basic idea behind the provision is that no wife should be left helpless so that she may be tempted to commit a crime. This provision enables a Magistrate to take summary action for prevention of destitution.

10. Section 125, Cr.P.C. requires as a sine qua non for its application, neglect by the respondent (husband or father). Therefore, apart from establishing that the husband has sufficient means, it must further be established that he has neglected or refused to maintain his wife. Neglect or refusal to maintain goes to furnish the cause of action or ground to claim maintenance. Neglect or refusal to maintain may be express or implied. It may be inferred from the words or conduct. If the husband does not care for his wife and minor daughter it is a case of neglect or refusal to maintain his wife and child. But if the wife leaves of her own the husband's home, she cannot claim maintenance from husband as the latter cannot be said to have refused or neglected to maintain her.

11. Before proceeding further, something should also be said on the role and powers of the Court, while dealing with application under Section 125, Cr.P.C.

12. The role of the Court is not that of silent spectator or of a passive agency. When a dispute is brought before the Court, particularly where maintenance of a neglected wife or a minor child is in issue, the Court must take a genuine interest to find out the truth of the matter. In a proceeding under Chapter IX of the Code of Criminal Procedure, the role of the Court is only to find out whether there is a prima facie case in the claim of the person approaching Court for an immediate relief. The Court has no time, nor jurisdiction to embark upon an elaborate inquiry. The jurisdiction conferred by the section on the Court is more in the nature of preventive, rather than a remedial jurisdiction; it is certainly not punitive. Sections 125 to 127, Cr.P.C. charge the Court with the humane obligation of enforcing the maintenance of its just equivalent to ill-used wives and castaway ex-wives, only if the woman has received voluntarily a sum, at the time of divorce sufficient to keep her going according to the circumstances of the parties.

13. Keeping the above proposition of law in mind, it is to be seen whether the findings recorded by the learned Judge, Family Court are correct or not.

14. It may be stated here that so far as the maintenance awarded to daughter is concerned, the impugned order was passed by the learned Judge, Family Court, Ajmer on 22.10.1992 and on that day, she was a child of near about 12 years and now she would have become major now and, therefore, no question arises that she should be allowed maintenance now and from this point of view, the case would be judged whether respondent-wife was entitled to maintenance or not.

15. From perusing the pleadings of the respondent-wife, it appears that she has lived with the petitioner-husband so many times and even in the month of June, 1980, she went again to the house of the petitioner-husband, but her allegation is that she was again beaten and tortured by her husband-petitioner and since August, 1980, she is living in her parents house along with her daughter. In these circumstances, she has asserted in para 6 of the application that since she was beaten so many times, therefore, it was not possible for her to live with her husband-petitioner. She has also stated in her statement recorded in Court as AW1 that her husband-petitioner used to beat and quarrel with her and that is why, she is living with her parents.

16. The petitioner-husband in his statement recorded in Court as N.A.W. 1 has admitted that since 16.8.1980, he and his wife-respondent are living separately and he has further stated that his wife-respondent asked him that in case he wanted to live with her, he should live in her parents' house as Ghar Jamai.

17. When the respondent-wife has lived so many times with the petitioner husband and out of that wedlock, two daughters were born, in these circumstances, to say that the respondent-wife did not want to live with her husband-petitioner is wrong one and the case of the respondent-wife that petitioner-husband had beaten her so many times, therefore, she did not want to live now with the petitioner-husband, appears to be correct one. Thus/the findings of the learned Judge, Family Court that petitioner-husband, deseried his wife-respondent for no cause appear to be correct one and the same are liable to be confirmed.

18. From the statement of the petitioner-husband, it does not appear that he had taken such type of steps by which he wanted to take his wife-respondent back to the house. He has clearly admitted that since August, 1980, he and his wife-respondent are living separately and in these circumstances, if any efforts were made by the petitioner-husband, they could not have been said to be bona fide and genuine efforts.

19. It may be stated here that offer of the husband must be bona fide and genuine one and if offer is only to perform the formality, such type of offer has no value and in the present case, it appears that if any offer was made by the petitioner husband, that was only to substantiate cause on flimsy grounds and that offer cannot be said to be bona fide and genuine one. Hence, the case of the petitioner-husband that he is still ready and willing to take his wife-respondent back cannot be accepted.

20. So far as the argument that respondent-wife wanted to keep the petitioner husband in her parents' house as Ghar Jamai is concerned, this aspect as held by the learned Judge, Family Court has not been proved by the petitioner-husband with sufficient evidence and, therefore, from this point of view, if the wife-respondent is living separately, she should not be deprived of maintenance allowance.

21. Since the basic idea behind the object of Section 125, Cr.P.C. is that the wife should not be left helpless, therefore, from this point of view also, the claim of the wife-respondent for maintenance appears to be reasonable one in the present case.

On point of quantum :

22. The learned Judge, Family Court, Ajmer vide his impugned order dated 22.10.1992 awarded maintenance allowance of Rs. 1,000/- to the respondent-wife and her daughter.

23. As already stated above, when the impugned order dated 22.10.1992 was passed, daughter of the respondent-wife was aged about 12 years and now daughter of the respondent-wife would have become major, therefore, no question of granting maintenance allowance to her now arises.

24. Thus, looking to the entire facts and circumstances of the case, if the respondent-wife is allowed maintenance allowance of Rs. 500/- (Rs. five hundred only) for herself, it would meet the ends of justice.

In the result, this revision-petition filed by the petitioner-husband is partly allowed in the following manner :

(1) That the petitioner-husband is now not required to pay maintenance allowance to the daughter of the respondent-wife, pursuant to the order dated 22.10.1992 passed by the learned Judge, Family Court, Ajmer.

(2) That, however, the petitioner-husband would now pay the maintenance allowance of Rs. 500/- p.m. (Rs. five hundred only) to the respondent wife instead of Rs. 1,000/- (Rs. one thousand only) as ordered by the learned Judge, Family Court, Ajmer vide order dated 20.10.1992.

(3) The order of the learned Judge, Family Court, Ajmer dated 22.10.1992 stands modified accordingly to the above extent.


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