Ramesh Baboo v. Vimla Devi — 1982 DIGILAW 390 (ALL)

JUDGMENT N. N. Sharma, J. - This is a husband's petition under Section -482' of Code of Criminal Procedure with a prayer to set aside the order, of Magistrate dated 16-9-1981 and the order of revisional court `dated 24-7-1982 by which petitioner was held liable for maintenance of opposite party, his wife, to the extent of Rs. 150 per month, from 16-9-1981, in Case No. 18 of 1979, under Section 125 of Code of Criminal Procedure by IIIrd Special Judicial Magistrate, Budaun vide Annexure-2. 2. This order was affirmed in Criminal Revision No. 221 of 1991 by learned IV Additional Sessions Judge, Budaun on 24-7,1982 vide Annexure-4. 3. Admittedly, parties are husband and wife who were married eight years prior to the date of presentation of the application by wife on 4-3-1978. It was alleged by the wife in her application that her husband is a drunkard and gambler and treated her with cruelty. He turned out the opposite party from his house and he abandoned her after fleeing her ornaments etc. However, in order to avoid the second marriage of petitioner with another lady, on intervention of some persons, a compromise was filed in Case No. 17 of 1974, Vimla Devi v. Ramesh Babu In the court of S.D.M. Gunnaur, district Budaun for recovery of maintenance. It was given out in that compromise dated 10-6-1974 that on wards, the husband would not ill treat the wife. On that assurance, the wife again went to the house of husband who again began to beat her and to associate with gamblers and drunkards and ultimately married one Smt. Somwati, daughter of Ramesh, resident of Ismapur, Police Station Gurnaur and turned out the wife who had to take shelter under the 'roof of her father who is a man of scanty means, poor health and has to maintain the wife along with seven other members of the family with income of Re. 4,000 per year. The husband is in affluent means with annual Income of Rs. 10,000 and thus sought maintenance at the rate of Rs. 300 per month. 4. The case of petitioner-husband was that he never beat big wife ; he purchased 'some property in her name which was disposed of by her ; he denied the allegation of second marriage and expressed his willingness to take the wife to his house and thus prayed for dismissal of the application. 300 per month. 4. The case of petitioner-husband was that he never beat big wife ; he purchased 'some property in her name which was disposed of by her ; he denied the allegation of second marriage and expressed his willingness to take the wife to his house and thus prayed for dismissal of the application. 5. In support of her allegations, Smt. Vimla Devi examined herself as P.W. 1, Rakshpal Singh, her father as P.W. 2, Surendra Singh, her maternal uncle, as P.W. 3 and Manohar Singh as P.W., 4. 6. Husband examined himself as D.W. 1 and Bahadur as D.W. 2. 7. After appraisal of oral and documentary evidence on record, learned Magistrate upheld the case of Smt. Vimla Devi and awarded a sum of Rs. 150 per month as maintenance. The revision failed as given above. 8. I have heard learned counsel for parties at length and have carefully peruse d the evidence on record. 9. The first contention put forward before me on behalf of petitioner was that there was no allegation in the application or in the statements recorded by learned Magistrate that the wife was unable to maintain herself. Under such circumstances, the award of maintenance was illegal. In this connection learned Advocate for petitioner relied upon Manmohan Singh v. Smt. Mohindra Kaur reported in 1976 Cri. L. J. 1664. It appears that in that case there was no allegation in the application for recovery of maintenance that the wife was unable to maintain herself nor in her own statement she alleged that she was unable to maintain herself and under such circumstances award of maintenance under Section 125(l)(a) of Code of Criminal Procedure was held as illegal. 10. The next authority relied upon by learned Advocate for petitioner has been reported in Smt. Haunsbai v. Balkrishna Krishna Badogar, 1981 Cri. L. J. 110. In that case also, there was no averment made in the petition by wife that she was unable to maintain herself nor she established this by any evidence, so her petition failed on this score. 11. In the instant case, there is copy of the application submitted by wife for claiming maintenance. It is annexure-l. It was averred in the penultimate para of the petition that father of wife is an ordinary agriculturist who was maintaining his children with difficulty. 11. In the instant case, there is copy of the application submitted by wife for claiming maintenance. It is annexure-l. It was averred in the penultimate para of the petition that father of wife is an ordinary agriculturist who was maintaining his children with difficulty. Thus learned Advocate for revisionist pointed out that it follows by the necessary implication that the wife, who had to depend on the sources of her father for her maintenance, are salander to maintain the wife as well as her brothers and sisters etc. Her application has to be read as a whole and not piece meal. 12. I was also taken through the statement of Smt. Vimla Devi who, in her cross-examination dated 29-5-1981, deposed that "now-a-days I any living with my father. All the expenses of my maintenance are being defrayed by my father who provides meals, clothes etc. What do I possess to maintain myself with no means? Thus, it was pointed out that this specific statement of the lady could not be successfully rebutted by the testimony of D. Ws. and a definite finding was recorded by the learned Magistrate as well as the learned Revising Judge that the wife had no means to maintain herself. This finding of fact is not to be disturbed by me while exercising my inherent powers under Section 482 of Code of Criminal Procedure. This contentions appears to be well founded. In Aijaz Ahmad Lairi v. Smt. Shahjaehan Begum and others, ACC 1982 (9) at page 114: it was observed: "After the enforcement of new Cr. P. C., maintenance can be granted only to a wife who is unable to maintain herself. Even if it was not stated in the application, had it been so stated in the statement before the Court, the condition would have been satisfied. So far as the present case is concerned finding based on such evidence has been recorded by the Magistrate and has been upheld by the Court of revision and the matter stands finally concluded. Once from the finding of fact so recorded, it appears that the wife has no means to maintain herself, inherent powers under Section 482 Cr. P. C. would not be exercised in favour of the applicant. " 13. It appears that in that cases, there was no specific averment in the application by the wife that she was unable to maintain herself. P. C. would not be exercised in favour of the applicant. " 13. It appears that in that cases, there was no specific averment in the application by the wife that she was unable to maintain herself. In para 4 of the application, it was expressly stated by her that she was sent to her parents place in April, 1973, and her father Sri Mahboob Ali was maintaining her since then. It was held that this by necessary implication amounted to an assertion that she was no independent means of living but was being maintained by her father. It was further observed that proceedings under Section 125 Cr. P. C. may be akin to civil proceedings but one important distinction between the two cannot be over-looked, namely, the object behind the enactment of maintenance provisions in the Code of Criminal Procedure. The crux of the matter always is whether the party claiming a maintenance has the means or not. The law of pleading in civil case may be more strict, but it may not be so when the matter of public policy and its objectives are involved as under Section 125 of Code of Criminal Procedure. 14. I respectfully agree with the aforesaid observations. In a civil suit, parties are tied to their pleadings but in an application under Section 125 of Code of Criminal Procedure, the application is not to be scrutinised to see as to whether it has been couched with the accuracy of a pleading. Moreover, when there is specific statement of wife on oath, as extracted above that she had absolutely no means and the trial Magistrate found her unhealthy needing medical treatment and the necessity of such treatment of her ailment, such finding of fact based on such statement of the wife cannot be set aside by me so lightly in this petition. So the aforesaid contention is repelled. 15. The next contention was that the husband is ever ready and willing to keep his wife who kept herself away, without any rhyme or reason. There was no proof on record to show that she was treated with cruelty. So the aforesaid contention is repelled. 15. The next contention was that the husband is ever ready and willing to keep his wife who kept herself away, without any rhyme or reason. There was no proof on record to show that she was treated with cruelty. His marriage with Smt. Somwati has not been proved according to Hindu rites and as such did not justify the award of maintenance in view of explanation appended to Section 125 sub-clause (3) to the second proviso which reads as below : "Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section not-with standing such offer, if he is satisfied that there is just ground for so doing." 16. In this connection, reliance was placed upon Jagarnath Yadav v. Smt. Panwa and another, ACC 1983(20) page 14 where husband made an offer to take his wife to his place and keep her and maintain her. Such offer was not considered by the courts below and so the case was remanded to record a specific finding on the genuineness of the offer of husband. Reliance was also placed upon Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another, AIR 1965 Supreme Court 1564 where the head note is as below : "(b) Penal Code (1860), S. 494-Punishment for bigamy-Whether subsequent marriage need be a valid marriage ?" Obviously, this ruling is wide off the mark. It was a case under Section 494 of Indian Penal Code for bigamy and in order to attract the penalty, it could not be established by prosecution that the subsequent marriage has been performed in accordance with Section 17 of Hindu Marriage Act, 1955. Such marriage has not been solemned in accordance with the conditions mentioned in that section. Such marriage shall be treated as void. It cannot attract the penalty imposable by Section 494 of Indian Penal Code. 17. In the instant case, the evidence of parties was assessed by learned trial Magistrate minutely ; he even reproduced the material portion of evidence showing that offer of the husband to bring back the wife was not genuine. He had treated her with cruelty. It cannot attract the penalty imposable by Section 494 of Indian Penal Code. 17. In the instant case, the evidence of parties was assessed by learned trial Magistrate minutely ; he even reproduced the material portion of evidence showing that offer of the husband to bring back the wife was not genuine. He had treated her with cruelty. His witness D.W.2 Bahadur admitted that he is a previous convict and there is sufficient evidence on record to show that he used to beat his wife. Compromise was filed in the earlier proceedings with the condition that he would not maltreat her onwards. It was further held on the evidence on record that husband was keeping another wife. That finding of fact has been upheld in revision and is binding on me. Under these circumstances, it is not possible for me to hold that this finding of fact that husband never genuinely offered to maintain his wife and keep her at this house or that he is keeping another wife or mistress is perverse or unjust. In Jagdish Chandra v. Smt. Somwati, ACC 1981(18) page 220 it was observed : "If, the husband has entered into the second nuptial arrangement with another lady, then such marriage would give a right to the first wife to refuse to live with her husband. Consent given by the wife to a second marriage or even her acquiesence to the second marriage, will not in any way effect her legal right to refuse to live with her husband and to claim maintenance allowance from him fpr her support." 18. Moreover, there is on record copy of plaint (Annexure-3) of a suit of the year 1981, Mulayam Singh v. Smt. Vimla Devi and others, filed in the court Munsif, Budaun. Mulayam Singh is father of Ramesh Babu, petitioner. In the suit, there was an imputation of unchastity to the wife in para 4 of the plaint alleging her illicit intimacy with Ram Autar, defendant No. 2, cousin of Ramesh Babu. Under such circumstances, it is obvious that in a house where the husband as well as his father attributed unchastity and immorality to the wife, although in his statement D. W. alleged to be an affectionate husband, his assertion that be was still ready to keep his wife and maintain her at his place is purposive and false. Under such circumstances, it is obvious that in a house where the husband as well as his father attributed unchastity and immorality to the wife, although in his statement D. W. alleged to be an affectionate husband, his assertion that be was still ready to keep his wife and maintain her at his place is purposive and false. In Bans Gopal v. Smt. Sarjoo Devi and others, ACC 1982(19) page 197, it was observed : "It was contended that the wife should have appeared for compromise. On a perusal of the husband's statement, I find that he has attributed unchastity and immorality to the wife and when that is the position, her claim cannot be defeated on such pleas." So this contention also is ruled out. 19. The next contention was that only nine bighas of land stood in the name of Ramesh Babu. In his statement be alleged that he was not joint in cultivation with his father. He was a labourer and earned Rs. 4 or 5 per day. He conceded that he was wearing a terrylin shirt and a Dhoti worth Rs. 19 at the time of his deposition. He further alleged that his father purchased holding for Rs. 9,000 ; his father has holding to the extent of 35-40 bighas ; he had one more brother. However, his witness Bahadur (D,W. 2), who has being supported by the husband, testified that Ramesh Babu was a man of middle status and affluent means. He was Karta of the family. Both the brothers and their father were members of the joint Hindu family. They had a persian wheel. They had kuchcha and pucca house. He did not support the statement of the husband that the husband was a daily labourer of Rs. 4 or 5. 20. On the other hand, there is cogent evidence believed by the courts below showing that the husband has considerable means. In her statement, Smt. Vimla Devi testified that Ramesh Babu was a money lender. He had 60 bighas of holding and two tube-wells. After the assessment of the entire evidence, the courts below found that the husband had plenty of means to pay at least Rs. 150 per month to the wife as maintenance in these hard days having regard to her essential requirements. 21. He had 60 bighas of holding and two tube-wells. After the assessment of the entire evidence, the courts below found that the husband had plenty of means to pay at least Rs. 150 per month to the wife as maintenance in these hard days having regard to her essential requirements. 21. Learned Advocate for petitioner relied upon J. M. Dutta v. State of U. P., A.C.C. 1977(14) page 258 In which it was observed: "It is clear that a wife is entitled to maintenance only if the husband neglects or refuses to maintain her and if she is unable to maintain herself. In the present case the trial court has not given any finding on these two points and therefore the order is unsustainable." So the aforesaid observation itself shows that it is not in point. 22. On behalf of petitioner it was next pointed out that the wife had Rs. 14,000 which was the amount of sale proceeds of the holding gifted to her by her father's sister. Even the father of husband had purchased two bighas of holding in the name of his wife which she sold away and under such circumstances, she bad plenty of means to maintain herself and get medical treatment 23. The contention that out of affection, father of husband purchased two bighas of land which was sold away by the wife, is falsified by annexure-3, the suit filed by Mulayam Singh against Ram Autar and Smt. Vimla Devi etc., alleging that this purchase of holding in the name of Smt. Vimla Devi was simply a sham transaction ; the sale deed dated 23-6-1976, executed by Smt. Ujjal Kunwar in favour of defendant No. 1 Smt. Vimla Devi was purely a Benami transaction Plaintiff viz ; Mulayam Singh, was certainly the owner in possession of the property in dispute and paid the entire sale consideration and other expenses. Defendant No. 1 (opposite party in this petition) never paid any money to Smt. Ujjal Kunwar nor she has any means to purchase this land. Defendant No. 1 was never in possession over the land in suit at any moment. In para 5, it was averred that the aforesaid holding was purchased by Mulayam Singh in the name of Smt Vimla Devi for his own benefit and enjoyment. Sale deed dated 27-6-1979 executed by Smt. Vimla Devi in favour of defendants Nos. Defendant No. 1 was never in possession over the land in suit at any moment. In para 5, it was averred that the aforesaid holding was purchased by Mulayam Singh in the name of Smt Vimla Devi for his own benefit and enjoyment. Sale deed dated 27-6-1979 executed by Smt. Vimla Devi in favour of defendants Nos. 1 and 2 was illegal and liable to be cancelled as it was without consideration and for other various reasons enumerated in para 10 of the plaint. 24. Similarly, the contention that the holding of her father's sister was sold for Rs 14,000 is without any evidence on record. 'There is the sworn testimony of Smt. Vimla Devi that it was sold by her father for Rs. 5,000 to meet the expenses of his gout ailment. This allegation was believed by the courts below who found that Smt. Vimla Devi also needed some money for her maintenance including the expenses for her treatment. Learned trial Magistrate found her in a very poor state of health also. 25. In the,instant case, I find that when it has been proved that husband has neglected to maintain his wife and has treated her with cruelty and had considerable means to maintain her and the amount of maintenance awarded to her is quite reasonable, it is not possible for me to interfere in this petition under Section 482 of Code of Criminal Procedure. 26. Interference under Section 482 of Code of Criminal Procedure has to be done only in cases where there is any injustice of a grave nature or where it is pulpable and clear and not doubtful and there exist no other provision of law by which the aggrieved party could have sought relief. 27. It appears that the husband has availed all the remedies provided by law and has not paid a single pie to the wife and has filed this petition as a last resort to evade the claim of the wife. In this view of the matter also, the petition is liable to be dismissed. 28. In the result, the petition fails and is dismissed. Stay order, if any, is vacated herewith.