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Rajasthan High Court · body

1994 DIGILAW 970 (RAJ)

DURGA SHANKAR v. DHAPU BAI

1994-12-08

B.R.ARORA

body1994
Judgment B. R. ARORA, J. ( 1 ) THIS revision petition is directed against the order dated 13-7-93, passed by the Judge, Family Court, Udaipur, by which the learned Judge of the Family Court allowed the application under Section 125 Cr. P. C. filed by the applicant-wife Smt. Dhapu Bai and awarded her maintenance @ Rs. 300/- per month to her and Rs. 150/- per month to each of her two daughters Kumari Seema and Kumari Kalawati with effect from 17-9-92. ( 2 ) SMT. Dhapu Bai, on 17-9-92, filed an application under Section 125 Cr. P. C. against her husband/petitioner Durga Shanker, for the grant of maintenance to herself as well as to her two minor daughters. It was alleged in the application that the marriage of applicant Smt. Dhapu Bai with petitioner Durga Shanker took place 15/16 years before and out of this wed-lock, two daughters, viz. , Kumari Seema and Kumari Kalawati, were born to her. She was subjected to cruelty by her in-laws as well as by her husband and several times she was given beatings. She was not supplied even proper food and clothings by her in-laws and the husband. About 2 1/2 to three months before, when she was in the advanced stage of pregnancy, she was given beatings and was turned-out from the house and she is, now, living with her parents. The non-applicant has sufficient source of income amount to Rs. 3000/- per month and, therefore, she may be awarded the maintenance @ Rs. 1000/- per month for herself as well as for her two minor daughters. This application was opposed by the husband/non-applicant and the allegations made in the complaint regarding the cruel treatment to the wife were refuted. It was, also, alleged in the reply that applicant Smt. Dhapu Bai is living an adulterous life and is not entitled for any maintenance. It was, also, submitted in the reply that he saw her in the company of one Prem Shanker in a compromising position once in the field and for the another time in the cote (Bara) at 9. 00 p. m. on 28-12-91. It is, also, alleged in the reply that the second daughter of Smt. Dhapu Bai was not born from his loin. The applicant-wife, in support of her case, examined herself as AW 1, her two brothers-in-law (Dewars) in distance relation, viz. 00 p. m. on 28-12-91. It is, also, alleged in the reply that the second daughter of Smt. Dhapu Bai was not born from his loin. The applicant-wife, in support of her case, examined herself as AW 1, her two brothers-in-law (Dewars) in distance relation, viz. , AW 2 Jagdish Lal and AW 3 Bhagwati Lal. The petitioner-husband examined himself as NAW 1 and produced in his evidence his mother Smt. Kesar Bai as NAW 2. The learned Judge of the Family Court, after trial, came to the conclusion that applicant Smt. Dhapu Bai was subjected to cruelty and was turned-out from the house and the petitioner-husband has, also, levelled false allegations impeaching the character of his wife and has gone to the extent that she is living in adultery and has relations with Prem Shanker and as such the wife has justified reasons to live separately from her husband. The learned Judge of the Family Court has, also held that the husband has sufficient source of income while the applicant is unable to maintain herself as well as to her two daughters and, therefore, he awarded Rs. 300/- per. month as maintenance to the wife and Rs. 150/- per month as maintenance to each of her two daughters. It is against this order that the petitioner-husband has preferred this revision petition. ( 3 ) IT is contended by the learned counsel for the petitioner that the petitioner has been able to prove that applicant Smt. Dhapu Bai is living an adulterous life and, therefore, she is not entitled for any maintenance. It has, also been contended by the learned counsel for the petitioner that Smt. Dhapu Bai has left the house of the petitioner without any justified reasons and, therefore, she is not entitled for any maintenance on both these counts. The learned counsel for the respondents, on the other hand, has supported the order passed by the Court below. ( 4 ) I have considered the submissions made by the learned counsel for the parties. ( 5 ) AW 1 Smt. Dhapu Bai has stated that her marriage with petitioner Durga Shanker took place fifteen years before and out of this wed-lock, two daughters Kumari Seema and Kumari Kalawati were born to her. She was subjected to cruelty by her husband. ( 5 ) AW 1 Smt. Dhapu Bai has stated that her marriage with petitioner Durga Shanker took place fifteen years before and out of this wed-lock, two daughters Kumari Seema and Kumari Kalawati were born to her. She was subjected to cruelty by her husband. He used to give her beatings once in every five to ten days and he, also, levelled false allegations regarding her character and about one year before, when she was in the cote (Bara) she was felled down by a cow, whereupon she raised an alarm and hearing that alarm, her neighbourer Prem Shanker came to save her but on this count her husband levelled false allegations regarding her character and asked her to go with Prem Shanker. Thereafter he stopped the supply even of the food to her and turned her out from the house and since then she is living with her parents. For some time she met both the ends by begging and thereafter her parents took her to their house. She has, also, stated that her husband has fifty Bighas of irrigated and twenty Bighas of unirrigated agricultural land and he is, also, doing the labour work and earns about Rs. 50/- perday. She has categorically denied the allegation of having illicit relations with Prem Shanker. In the cross-examination she has denied that she was caught red-handed by her husband in a compromising position with Prem Shanker in the Bara. She has, also, stated that the incident of throwing her down by the cow took place at about 7. 00 p. m. and not at 9. 00 p. m. on the alleged date. AW 2 Jagdish Lal is in distant relation of petitioners Durga Shanker, who has stated that Smt. Dhapu Bai was subjected to cruelty by the petitioner and the petitioner used to level charges regarding her chastity but he has not heard anything against her character. He has specifically stated that he is a relative of Durga Shanker. In the cross-examination he has specifically stated that he did not see the applicant leading an adulterous life. His relations with the petitioner has not been disputed. Similar is the statement of AW 3 Bhagwati Lal, who is, also, the brother of the petitioner - though in some distant relation. In the cross-examination he has specifically stated that he did not see the applicant leading an adulterous life. His relations with the petitioner has not been disputed. Similar is the statement of AW 3 Bhagwati Lal, who is, also, the brother of the petitioner - though in some distant relation. Petitioner Durga Shanker (NAW 1), in his statement, has stated that Smt. Dhapu Bai was not subjected to any cruelty by him or any of the members of his family. He found Smt. Dhapu Bai in a compromising position with Prem Shanker at 9. 00 p. m. in the Bara about fifteen to sixteen months before. He caught-hold of Prem Shanker and took him out from the Bara and, also, gave beatings to Prem Shanker. Thereafter his mother came and rescued him. According to him, as the neighbourers had already slept, therefore, none came there. He has, also, stated that Smt. Dhapu Bai still comes to his village and is having illicit relations with Prem Shanker. He has, also, stated that three months before when he caught-hold of Smt. Dhapu Bai with Prem Shanker in a compromising position in the Bara, he had, also, seen them in the same position in the field. He has, also, stated that Smt. Dhapu Bai is doing labour and earns about Rs. 20/- to Rs. 25/- per day. In the cross-examination he has denied the suggestion that she was feeding the cow and was thrown-down by the cow on the ground and on hearing her alleged alarm Prem Shanker came and rescued her. However, he has admitted that in the macca field he never saw Smt. Dhapu Bai and Prem Shanker in a compromising position. NAW 3 Bhagwati Lal has stated that fifteen-sixteen months before, in the month of December, at about 9. 00 p. m. he had gone to extract water from the hand-pump which is situated out-side the house of Durga Shankar and saw that Durga Shanker had caught-hold Prem Shanker and was coming out from the Bara and in his presence Durga Shanker gave four-five slaps on the face of Prem Shanker. In the cross-examination he had admitted that he did not make any enquiry from Durga Shanker; why he was giving beatings to Prem Shanker. He did not narrate this incident to any person till today. In the cross-examination he had admitted that he did not make any enquiry from Durga Shanker; why he was giving beatings to Prem Shanker. He did not narrate this incident to any person till today. He has, also, admitted in the cross-examination that he and Durga Shanker had seen each other at that time while NAW 1 Durga Shanker has stated that at that time no one was present there. NAW 3 Kesar Bai is the mother of the petitioner, who has stated that fifteen-sixteen months before, at about 9. 00 p. m. , Durga Shanker had caught-hold of Prem Shanker and Prem Shanker ran away and Durga Shanker went inside the house and did not say anything to her. ( 6 ) IT is true that adultery cannot be proved by direct evidence and only an inference can be drawn regarding adultery from the attending circumstances. But the person, who alleges that the another party had been living in adultery, has to prove, from the attending circumstances with a clear, cogent and convincing evidence which admits one and only one inference that the other party is living in adultery. If it is proved from the attending circumstances by clear, cogent and convincing evidence then only the evidence regarding adultery can be accepted. From the evidence, produced by the petitioner-husband, which has been discussed above, the petitioner has failed to prove the allegation of adultery against hiswife Smt. Dhapu Bai, while Smt. Dhapu Bai has been able to prove, from the convincing evidence that she was subjected to cruelty and was forcibly turned-out from the house by the husband and her husband, also, levelled wild allegations regarding her character. As the petitioner-husband had levelled allegations impeaching the character of Smt. Dhapu Bai that she was having illicit relations with Prem Shanker and as the applicant has been able to prove the cruel treatment of the husband and turning her out from his house, she had justified reasons to live separately from the husband. The learned Judge of the Family Court has, therefore, not committed any illegality in allowing the application filed by the applicants regarding the grant of maintenance to them. ( 7 ) THE next contention, raised by the learned counsel for the petitioner is that looking to the financial position of the petitioner the grant of maintenance to the applicants @ Rs. 600/- per month is highly excessive. ( 7 ) THE next contention, raised by the learned counsel for the petitioner is that looking to the financial position of the petitioner the grant of maintenance to the applicants @ Rs. 600/- per month is highly excessive. The petitioner is working as a Labourer and earns about Rs. 50/- per day. He, also, owns fifty Bighas of irrigated and fifteen Bighas of unirrigated agricultural land. In these hard-days, looking to the soaring prices of the essential commodities, the award of maintenance @ Rs. 600/- per month for three persons, i. e. , the wife and two growing children, cannot be said to be, in any way, excessive, rather it is on the lower side. The learned Judge of the Family Court has not committed any illegality in awarding maintenance to the applicants @ Rs. 600/- per month, i. e. , Rs. 300/- per month to the wife and Rs. 150/- per month to each of the two minor daughters. The judgement, passed by the learned Judge of the Family Court, does not require any interference. ( 8 ) IN the result, I do not find any merit in this revision petition and the same is hereby dismissed. Revision dismissed.