SRABAN KUMAR PRADHAN v. MENAKA KUMARI ROUT ALIAS PRADHAN
1992-03-03
ARIJIT PASAYAT
body1992
DigiLaw.ai
ARIJIT PASAYAT, J. ( 1 ) PETITIONER calls in question legality and propriety of the order passed by the learned Sub-Divisional Judicial Magistrate, Jagatsinghpur, in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (in short 'the Code' ). ( 2 ) THE background facts are to the following effect. Opposite party No. 1 and the petitioner were married on 5-6-1979. Out of their wedlock a daughter (opp. party No. 2) was born on 6-4-1980. An application for maintenance under Section 125 of the Code was filed by opposite party No. 1 on the ground that the petitioner having sufficient means neglected and refused to maintain her and her daughter. Both she and her daughter ware unable to maintain themselves. A claim of Rs. 1200/- was made on the ground that the petitioner was drawing salary of more than Rs. 3,000/- per month. The background for such neglect and refusal was stated to be inability of opp. party No. 1's father to give money to the petitioner for purchase of land. Allegations of assault were made. It was specifically alleged that on 15-2-1982 the petitioner and opp. party No. 1 visited the house of latter's father which was affected by flood. Petitioner left opp. parties there with assurance to take them back shortly; but subsequently refused to do so. The petitioner assaulted opposite party No. l, treated her with cruelty. The petitioner filed a counter affidavit refuting the allegations of assault, demand for money, neglect and/or refusal to maintain. According to him, opposite party No. 1 was a quarrelsome lady, and constantly created trouble with the petitioner and his family members. All attempts to pacify her had failed. She never approached petitioner to take her back, and on the contrary she refused to attend several family functions in spite of requests and intimations. ( 3 ) THREE witnesses were examined to further the claim, while five witnesses were examined to counter the same. On evaluation of evidence, the learned SDJM came to hold that the petitioner neglected to maintain the opposite parties, who were unable to maintain themselves, though he had sufficient means. He held that the facts of the case proved that ill-treatment was meted out by the petitioner to the opp. party No. 1. However, so far as the quantum is concerned, he quantified the same at Rs. 600/-, i. e. Rs.
He held that the facts of the case proved that ill-treatment was meted out by the petitioner to the opp. party No. 1. However, so far as the quantum is concerned, he quantified the same at Rs. 600/-, i. e. Rs. 400/- for opposite party No. 1 and Rs. 200/- for opp. party No. 2 per month which was directed to be paid with effect from 11-4-1988. During the pendency of the proceeding interim maintenance at the rate of Rs. 300/- was granted from June, 1989. ( 4 ) THE learned counsel for the petitioner assails the conclusions of the learned S. D. J. M. primarily on two scores. According to him, the evidence on record clearly established that the app. party No. 1 refused to live with her husband without sufficient reason and therefore was not entitled to any maintenance. Reference is made to Sub-Section (4) of Section 125 in this context. The quantification as made is high. However, during the course of argument it was stated that the quantum of maintenance awarded so far as the opp. party No. 2 is concerned is not challenged, and the petitioner is willing to pay the same, though he does not accept that there was any neglect or refusal. It is only with respect to entitlement of opp. party No. 1, and quantum awarded to her the challenge was restricted. It is urged that there was no material to substantiate the allegations of cruelty and ill-treatment, and therefore the learned SDJM erred in concluding that there was cruelty and ill-treatment. The learned counsel for opp. parties, however, submitted that on careful scrutiny of the evidence, the Court below has granted the maintenance, which is fair, reasonable and needs no interference. ( 5 ) I shall first deal with the contention relating to applicability of Section 125 (4) to the facts of the case. A conjoint reading of Sub-Section (1) and Sub-Section (4) of Section 125 is necessary. They are quoted below for reference. "125. Order for maintenance of wives, children and parents.
( 5 ) I shall first deal with the contention relating to applicability of Section 125 (4) to the facts of the case. A conjoint reading of Sub-Section (1) and Sub-Section (4) of Section 125 is necessary. They are quoted below for reference. "125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain : (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct : provided that the Magistrate may order the father of a minor female child, if married, referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child is not possessed of sufficient means. Explanation : For the purposes of this Chapter,- (a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) and (3) xx xx xx (4) No wife shall be entitled to receive an allowance from her husband under this 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. " a wife shall be disentitled to claim maintenance if she (i) is living in adultery, or (ii) refuses, without sufficient reason, to live with her husband; or (iii) is living separate by mutual consent.
" a wife shall be disentitled to claim maintenance if she (i) is living in adultery, or (ii) refuses, without sufficient reason, to live with her husband; or (iii) is living separate by mutual consent. If one of these situations is established, an order for maintenance granted under Sub-Section (1) shall be cancelled. The words 'entitled to receive an allowance' in Sub-Section (4) make it clear that the provisions of Sub-Section (4) govern the whole of Section 125 including Sub-Section (1 ). Grounds of disentitlement in Sub-Section (4) govern Sub-Section (1), and no maintenance can, therefore, be allowed even under Sub-Section (1), if the wife is living in adultery, or if without any sufficient reason she refuses to live with her husband, or if she and her husband. are living separately by mutual consent. That would be a harmonious reading of the two provisions; because the ground which disentitles a wife to receive allowance will be also a ground for refusing the claim for maintenance. The object of the legislature behind Sub-Section (4) appears to protect both husband and the wife. The husband is not to be compelled to maintain a wife who becomes unvirtuous or is so unreasonable as not to live with him and perform her conjugal duties. The wife may refuse to live with the husband and perform her conjugal functions if there is sufficient reason for the same. In other words, Sub-Section (1) is to be read with Sub-Section (4), so that if the grounds mentioned in Sub-Section (4) exist at the time of considering the application for maintenance under Sub-Section (1), the application shall be dismissed. Neither in Sub-Section (4) nor in Sub-Section (5) there is enumeration as to what would be 'sufficient reason' for a wife-claimant to refuse to live with her husband, and yet succeed in her claim for maintenance. It is left to be determined by the Court objectively, having regard to the circumstances of each case and the social ideas and customs of the community to which the parties belong. Under Sub-Section (4), a wife, who without sufficient reason, refuses to live with her husband, is disentitled to maintenance. Under Sub-Section (3) if she has just ground for such refusal, she would be entitled to have the order of maintenance enforced notwithstanding the offer of the husband to maintain her on condition of her living with him.
Under Sub-Section (4), a wife, who without sufficient reason, refuses to live with her husband, is disentitled to maintenance. Under Sub-Section (3) if she has just ground for such refusal, she would be entitled to have the order of maintenance enforced notwithstanding the offer of the husband to maintain her on condition of her living with him. It is apparent that the two expressions 'just ground' and 'sufficient reason' are synonymous. A similar view was expressed by a Full Bench of the Madras High Court in Gantapalli v. Gantapalli, (1897) 20 Mad 470. Sufficiency of reason contemplated under Sub-Section (4) is a question of fact. It merely enacts an exception to the rule governing grant of maintenance and does not expressly give an indication as to where the burden lies to establish or disestablish such a fact. But since it is an exception, the burden of establishing it will lie on the husband. The proof may consist of admissions to be gleaned from the evidence adduced on behalf of the wife in support of her claim for maintenance or by way of adducing evidence to establish that the wife has no sufficient reason to withdraw from the company of husband. ( 6 ) ON the facts of the present case, it is seen that there was no attempt by the petitioner before the learned SDJM to establish applicability of Sub-Section (4) of Section 125. Adjudication of the question whether there was sufficient reason for the wife to live separately involves factual evaluation. In the instant case, the point having neither been urged before the learned SDJM nor adjudicated by him, I do not find any scope for considering that aspect while exercising revisional jurisdiction. Considerable emphasis was laid by Mr. S. K. Das, learned counsel for the petitioner on the evidence of the wife (opp. party No. 1) and her father (P. W. 2) to show that the opp. party No. 1 had herself departed from the company of the petitioner, and there was no sufficient reason for her doing so. I find no basis for coming to such a conclusion. The referred portions only show that at some point of time opp. party No.1 had refused to live with the petitioner. That in no way assist the petitioner to show absence of sufficient cause for her to do so.
I find no basis for coming to such a conclusion. The referred portions only show that at some point of time opp. party No.1 had refused to live with the petitioner. That in no way assist the petitioner to show absence of sufficient cause for her to do so. As indicated above, the onus lay on the petitioner to establish absence of sufficient reason and he had not placed acceptable materials in that regard for consideration of the learned SDJM. The first contention raised by the petitioner, therefore, fails. ( 7 ) HOWEVER, there is substance in the argument of Mr. Das that the learned SDJM went wrong in inferring cruelty and ill-treatment because opposite party No. 1 stayed away from the petitioner. The evidence led by the opposite parties was sufficient to establish neglect and refusal to maintain, but not cruelty and ill-treatment. ( 8 ) COMING to the reasonableness of the quantum awarded, the petitioner expressed his willingness to pay the amount awarded to opp. party No. 2. From the papers relating to the salary income of the petitioner, I find that there is dispute about the quantum. According to the petitioner, he was getting about Rs. 1300/-, when opp. party No. 1's stand is that he is getting Rs. 3,000/ -. Possession of landed property by the petitioner and income therefrom was not established. From the evidence on record, I find that petitioner's gross salary was Rs. 2320/- and after deduction he was getting Rs. 1460/ -. Considering these facts, I feel that it would be reasonable to fix the quantum of maintenance at Rs. 500/- for both opp. party Nos. 1 and 2. With the aforesaid modification of the quantum of maintenance, the revision application is disposed of. Order accordingly.