Laduba Vs. Balvantsing Bhimsing Rana and anr. - Court Judgment

Excerpt:
criminal - maintenance - article 227 of constitution of india and section 125 of criminal procedure code, 1973 - petitioner-wife challenged judgment passed by sessions judge setting aside order of maintenance passed under section 125 by magistrate - petitioner staying separate from her husband for last 30 years from date of application of maintenance - living separately because of shortage of accommodation and harassment by her husband - petitioner dignity and womanhood jeopardized and she cannot be compelled to live with her husband - magistrate rightly found that petitioner entitled to get maintenance - held, petitioner entitled to maintenance at rate of rs. 100 per month. - - the first and foremost condition which requires to be satisfied by the wife for getting maintenance amount is that the applicant is lawfully married wife of the opposite party. but the reason given by her in her deposition was that because of no possibility to stay together in the small house with respondent along with his first wife rupba and because of harassment and physical as well as mental torture by first wife of the respondent and his parents 'with a view to drive her out of the house, she wascompelled to stay at her father's house along with her daughter, in my opinion, under the circumstances as deposed by the petitioner-wife, it cannot be said that the petitioner-wife was staying separate from her husband voluntarily or with mutual consent. but the evidence clearly reveals that she was force and compelled to live separate.bhairavia, j.1. these petitions under art. 227 of the constitution of india have been filed by the petitioner-wife challenging the common judgment and order passed by the addl. sessions judge, bharuch on 19 10-1985 in cri. rev. application no. 75 of 1984 and cri. rev. application no. 63 of 1984 quashing and setting aside the order of maintenance passed under section 125 of the cri. pro. code by the learned judicial magistrate (f.c.) 3rd court bharuch on 30 3-1984 in cri. misc. appl. no. 118 of 1982 as also dismissing the cri. rev. application no. 63 of 1984 filed by the petitioner-wife for enhancement of maintenance amount awarded by the learned magistrate in cri misc. application no. 118 of 1982. 2. the case of the petitioner-wife is that her marriage took place with the respondent husband about 30 years back as per the rites and rituals of their community. she stayed with the respondent-husband for about five years and out of their wedlock, she gave birth of one female child named rashida.it is the case of the petitioner-wife that before her marriage with the respondent-husband, respondent had already married with one rupba of napad and she was also staying with him in the said house. it has been alleged that after 4 to 5 years of marriage, on account of instigation of rupba-first wife of the respondent, respondent started beating her and started, giving physical and mental torture and she was driven out from the house by the respondent-husband. therefore, she was staying separate at the house of her father along with her daughter rashida since last 25 years from the date of application. it is the case of the petitioner that she was maintaining herself and her daughter by doing labour work and she did not claim maintenance during this period as she was capable of maintaining herself and her daughter. this fast has also been admitted by the respondent-husband. it is the case of the petitioner-wife that as now she has become old and on account .of injuries caused by bafullo, she is not capable of doing labour work at all and hence she is not capable of maintaining herself and, therefore, she has filed maintenance application under section 125 of the cr p.c. in the court of the learned judicial magistrate (f.c.) 3rd court, bharuch being misc. cri. application no. 118 of 1982 claiming maintenance from the respondent-husband. it is to be noted here that her daughter rashida has got married. the respondent-husband has opposed this application contending that the petitioner-wife is staying separate from him voluntarily since last 30 years and further he has contended that she is capable of maintaining herself. he has contended that he was ready and willing to keep her with him. it has been contended by him that a suit for restitution of conjugal rights (exh. 31) was also filed against the petitioner-wife and an ex parte decree was obtained.3. after appreciating the evidence on record, the learned magistrate was pleased to allow maintenance application of the petitioner-wife and awarded rs. 50/- per month towards maintenance to the petitioner-wife from the date of application by his judgment and order dated 30-3-1984. the respondent-husband, being aggrieved by the said judgment and order, challenged the said order in the court of the learned addl. sessions judge, bharuch by filing cri. rev. application no. 75 of 1984. the petitioner-wife being aggrieved by the quantum of amount awarded to her as maintenance being inadequate, filed cri rev. application no. 63 of 1984 for enhancement of the maintenance amount. the learned addl. sessions judge, was pleased to allow cri. revision application no 75 of 1984 filed by the respondent-husband and quashed and set aside the order of the learned magistrate and further was pleased to dismiss cri. rev. application no. 63 of 1984 preferred by the petitioner-wife by his common judgment and order dated 19.10.1985. spl. cri. application no. 336 of 1986 is filed against the judgment and order passed in cri. rev. application no. 75 of 1984 on 19-10-1985 while spl. application no. 337 of 1986 is preferred against the judgment and order passed in cri. rev. application no. 63 of 1984 (for enhancement of quantum of maintenance amount) on 19-10-1985. since both the spl. cri. applications arise out of common judgment and order dated 19-10-1985 passed by the learned addl. sessions judge, bharuch in cri. rev. applications nos. 75 of 1984 and 63 of 1984, both are being disposed of by this common judgment.4. it would be necessary to state certain admitted facts in this ease in order to appreciate the rival contentions of the parties. it is an admitted fact that the petitioner is the wife of the respondent-husband and their marriage took place as per the rites and rituals of their community some 30 year back. it is also an admitted fact that the petitioner is the second wife ofthe respondent. before the respondent married with the petitioner, he was already married with one rupba of napad who was also staying with the petitioner, it is also an admitted fact that the petitioner had stayed with respondent-husband for about 4 to 5 years after marriage. it is an admitted fact that initially respondent-husband was treating her nicely and out of wedlock petitioner gave birth of a female child named rashida. it is an admitted fact that the petitioner-wife is staying at her fathers house since last 30 years and was maintaining herself by doing labour work.5. the learned magistrate, after considering the evidence, allowed the application for maintenance and the respondent-husband was ordered to pay rs. 50/- per month to the petitioner-wife as maintenance by his order 30-3-1984. the learned magistrate has considered the evidence adduced by the petitioner-wife and held that because of ill-treatment and harassment given to the petitioner-wife by the first wife of the respondent and his parents, she was compelled to stay at her father's house along with her daughter. it has been held that she was given physical and mental torture by respondent-husband. the learned addl. sessions judge has reversed this finding and held that the petitioner-wife was staying separate from her husband voluntarily. further, it has been held that the petitioner-wife has faild to prove desertion and ill-treatment by the respondent-husband. the learned addl. sessions judge has also held that as the respondent husband has obtained a decree for restitution of conjugal rights against the petitioner-wife, she was not entitled for maintenance. in my opinion, the learned addl. sessions judge erred in taking this view. the learned addl. sessions judge relied on the provisions of section 125(4) of the cr. p. code and held that as the petitioner-wife is staying separately from her husband, voluntarily, she is not entitled to maintenance. section 125(4) of the crl.p. code reads as under.'125. order for maintenance of wives, children and parents :(4) no wife shall be entitled to receive an allowance from her husband under the section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.'6. it is to be noted here that the provisions of section 125 crl.p. code, are aimed at preventing starvation and vagrancy leading to the commission of crime, and aimed at securing social justice to women in our society belonging to the proper classes. further, it is to be noted here that these provisions are aimed to provide social welfare and reform. main thrust of the provision is to assist women and children in distress. the first and foremost condition which requires to be satisfied by the wife for getting maintenance amount is that the applicant is lawfully married wife of the opposite party. unless the relationship of husband and wife exists between the parties, question of getting maintenance does not arise. further, inability of a wife to maintain herself is a condition precedent to the very maintainability of the petition for maintenance.7. in the instant case, it is an admitted fact that the petitioner-wife is staying separate from her husband since last more than 30 years. but the reason given by her in her deposition was that because of no possibility to stay together in the small house with respondent along with his first wife rupba and because of harassment and physical as well as mental torture by first wife of the respondent and his parents 'with a view to drive her out of the house, she wascompelled to stay at her father's house along with her daughter, in my opinion, under the circumstances as deposed by the petitioner-wife, it cannot be said that the petitioner-wife was staying separate from her husband voluntarily or with mutual consent. but the evidence clearly reveals that she was force and compelled to live separate. in other words, the petitioner-wife was driven out with her daughter by the respondent and, therefore, through the petitioner-wife has filed petition for maintenance under section 125 crl.p. code after 30 years, that does not snatch away her right of demanding maintenance unless she voluntarily gives up that right. in fact, it is her goodness and the sense of self-respect that she did not claim maintenance from the respondent so long as she was capable to earn by doing labour work and maintained herself and her daughter for about 30 years. it is now at the fag end of her life that she is not able to maintain herself, she has to file petition for maintenance from her husband. the case of the petitioner-wife is that on account of injury caused by buffalo, she is now not in a position to do any manual/labour work. it is under these compelling circumstances and in order to prevent starvation and vagrancy that she had filed petition for getting maintenance. further, no evidence is forthcoming to show that she has got any source of income. further, it cannot be said that merely because a person is able-bodied and does not suffer from any physical or mental disability, he is always able to earn. ability to earn requires something more than a fit state of mind or body. it requires opportunity to earn, education or experience and many a time finance, push and pull. if these are not available to an able bodied person, then howsoever capable physically and mentally he may be, he should be considered as a person who is not able to earn or maintain himself.8. the plea of the respondent is that as there is a decree of restitution of* conjugal rights passed in favour of the respondent and on account of non-compliance of the same, wife looses her right to claim maintenance, is to be weighed in the facts and circumstances of the each case. in the instant case, said decree is ex parte decree. further, there is legal and valid reason for the petitioner-wife to live separate from the respondent-husband i.e. because of accute shortage of accommodation and because of harassment and physical and mental torture, she was compelled to live separate. therefore, it is held that the petitioner-wife is entitled to maintenance. wife has her own status and dignity. her dignity and womanhood must be preserved and respected. if her dignity and womanhood is jeopardised in the house of the husband, she cannot be .compelled to stay in that atmosphere. the learned magistrate has rightly held that the petitioner-wife is legally wedded wife of the respondent-husband and she is entitled to get maintenance as she is not staying separate voluntarily from the respondent-husband but because of physical and mental torture at the instigation of the first wife rupba of the respondent, she was living separate. she has categorically stated that she has been given physical and mental torture by the husband the learned magistrate has held that the version of the petitioner-wife is believable and witnesses also support her version. thus, in my view the learned magistrate has rightly held that is petitioner-wife is legally wedded wife of the respondent-husband and that because of the physical and mental torture at the instigation of the first wife of the respondent named rupba, she was driven out and since last 25 to 30 years, she is living separate. therefore, in my opinion, the view taken by the learned magistrate is right and petitioner-wife is entitled to get in maintenance from the husband. consequently the view taken by the learned addl. sessions judge is erroneous and hence, the judgment and order passed by the learned addl. session's judge requires to be quashed and set aside.9. so far as the quantum of maintenance amount is concerned, the petitioner-wife has filed spl. criminal application no. 337 of 1986 for enhancement of the same. in my view, an amount of rs. 50/- per month awarded by the learned magistrate is a sheer mockery. in these hard days, it is difficult to understand how an old lady would survive with the maintenance amount of rs. 50/- awarded by the learned magistrate. however, one should also look at the capacity and source of income of the husband to pay the maintenance amount. as per the evidence of the respondent-husband himself, land of 30 bighas is in the name of his father. it means that his father and mother are not dependent on him since they are earning about rs. 50,000/- per annum out of the agricultural produce. it is also proved by the petitioner-wife that the respondent-husband is working in the factory and his salary is rs. 825/- by examining labour officer shri arvindkumar jambusaria. respondent-husband states that his pay is rs. 825/- but towards deductions for various debts, large amount is being deducted and he is getting only rs 136-83 ps. per month towards salary. that was the position in the year 1981-82. however, deductions have no adverse effect on the earning capacity of the person concerned. for the sake of arguments even if it is believed that the respondent-husband has to maintain family of nine members (though the father and mother are not dependent on him as the father is holding 30 vighas of land and is earning about rs. 50,000/- per annum), round about rs. 90/- would come in the share of each family member. hence, the petitioner-wife is entitled to the maintenance at the rate of rs. 100/- per month from the respondent-husband from the date of application.10. in the result, both the spl. criminal applications are allowed accordingly. respondent-husband is directed to pay to the petitioner-wife the maintenance amount at the rate of rs. 100/- per month from the date of application. respondent-husband is further directed to pay the arrears of maintenance amount till date within the period of three months from the date of receipt of the writ of this court and will go on paying maintenance amount at that rate. rule in each spl. criminal application is made absolute accordingly.