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Madhya Pradesh High Court · body

1998 DIGILAW 648 (MP)

Gusai v. Banoobai

1998-09-02

S.B.SAKRIKAR

body1998
JUDGMENT S.B. Sakrikar, J. 1. Applicant-husband had directed this petition under Section 482, Criminal Procedure Code for quashing of the orders dated 19.8.1996 and 13.3.1997 respectively rendered by JMFC, Kanod in Misc. Criminal Case No. 25/91 and ASJ Kannod in Criminal Case No. 5/97. 2. Briefly stated the facts of the case are that the applicant and non-applicant No. 1 are the husband and wife. Non-applicant No. 2 is the son and non-applicant No. 3 is the daughter of the parties. Non-applicant No. 1 Smt. Banoobai filed petition before the JMFC Kannod under Section 125, Criminal Procedure Code for grant of maintenance to herself and minor son and daughter living with non-applicant No. 1. In the application it is stated that father of the applicant, after the birth of non-applicant No. 3 Kshmabai, ill-treated non-applicant No. 1 and turned her out along with minor children from the matrimonial home and, thereafter, applicant did not even care for their maintenance or for taking them back. It is also stated that after deserting non-applicant No. 1, the applicant contracted second marriage with one Jadibai, daughter of Patalia of village Muada. The application was opposed by the applicant mainly on the ground that non-applicant No. 1 along with minor children without any reasonable cause voluntarily left her husband was living separately with her parents and as such she is not entitled to get any maintenance. The applicant admitted the fact of second marriage with said Jadibai after obtaining divorce from non-applicant No. 1 under the customs prevailing in the community. 3. The Trial Court on evaluating the evidence available on record allowed the application filed by NAs and awarded maintenance at the rate of Rs. 200/- per month in favour of NA No. 1 and Rs. 150/- per month in favour of each of the NA Nos. 2 and 3. 4. Revision against the order of the Magistrate filed by the applicant was dismissed and the order of the Magistrate was affirmed. Aggrieved by the said orders of the Courts below, the applicant has filed this petition under Section 482, Criminal Procedure Code for quashing of the impugned orders of the Courts below. 5. I have heard Mr. K.L. Jain for the applicant. None appeared for NAs though served. 6. Aggrieved by the said orders of the Courts below, the applicant has filed this petition under Section 482, Criminal Procedure Code for quashing of the impugned orders of the Courts below. 5. I have heard Mr. K.L. Jain for the applicant. None appeared for NAs though served. 6. The Counsel for the applicant contended that the Re visional Court committed an error in throwing the burden of proof on the applicant on the point of voluntarily deserting the applicant by the NA No. 1 and living separately. The Counsel also contended that the NA No. 1 without any reasonable cause left the matrimonial home and living separately from her husband for a sufficient long time. The applicant was justified in contracting second marriage and on this count the NAs are not entitled to get any maintenance under Section 125, Criminal Procedure Code. The Counsel also contended that the Courts below committed the error in granting maintenance from the date of application without giving any sufficient reason for doing so. He contended that in the aforesaid circumstances to prevent the abuse of process of Court or miscarriage of justice an interference by this Court in exercise of powers under Section 482, Criminal Procedure Code is necessary. The Counsel relied on the decision of Kerala High Court in case Mohd. Kunhi v. Rukhiya, 1978 Cr. LJ 1645, and the decision of this Court in case of Kamla Bai v. Gajdnand, 1984 MPWN 170 . 7. I have considered the submissions of the Counsel for the applicant and also perused the record of the Courts below. On perusal of Section 125(4), Criminal Procedure Code it emerged that when the application is opposed on the ground of wife's refusal to live with her husband without sufficient reason, the initial burden proving the said fact lay on the non-applicant/husband. If the aforesaid fact is established from the evidence of the NA/husband then onus shifts on the wife to prove that she is living separately from the husband on justifiable grounds. The same principle is laid down by Hon. Kerala High Court in case of Mohd. Kunhi (supra) relied on by the applicant. If the aforesaid fact is established from the evidence of the NA/husband then onus shifts on the wife to prove that she is living separately from the husband on justifiable grounds. The same principle is laid down by Hon. Kerala High Court in case of Mohd. Kunhi (supra) relied on by the applicant. In this case both the Courts below on evaluating the evidence available on record came to the conclusion that applicant/husband failed to discharge initial burden lay on the applicant to prima facie establish that the wife refused to live with him without any sufficient reasons. Courts below also concluded that from the evidence of the NA it is proved that after birth of the NA No. 3, father of the applicant turned out NA No. 1 along with NAs 2 and 3 from her matrimonial home and thereafter he also neglected and refused to maintain his wife and minor children. The aforesaid findings of the Courts below are based on proper evaluation of the evidence available on record and this Court in exercise of powers under Section 482, Criminal Procedure Code is not supposed to re-appreciate the evidence and interfere with the concurrent findings of the Courts below. 8. In view of the facts and circumstances of the case and the law applicable, the submissions of the Counsel for the applicant cannot be accepted. 9. With regard to contracting second marriage it is not disputed that after six months of desertion of the NA, applicant contracted second marriage with one Jadibai on obtaining customary divorce from the NA No. 1. The law is well settled on the point that divorced wife is also entitled to get maintenance from her husband till she remains unmarried or unchaste. In the present case, it is not alleged that the NA after alleged customary divorce has got married or living in adultery. As such on this count also she cannot be refused maintenance allowance from her husband. The facts of the Kamla Bai's case (supra) are distinguishable from the facts of the case on hand and the principles laid down in the said case cannot be applied to the instant case. 10. As such on this count also she cannot be refused maintenance allowance from her husband. The facts of the Kamla Bai's case (supra) are distinguishable from the facts of the case on hand and the principles laid down in the said case cannot be applied to the instant case. 10. On the point of grant of maintenance from the date of application, it is said that Section 125(2), Criminal Procedure Code is very clear that such maintenance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. Considering the aforesaid provisions there can be no dispute on the point that ordinarily payment of maintenance under Section 125, Criminal Procedure Code has to be ordered from the date of the order but if the Court decides to award maintenance from the date of application then reasons have to be given in the judgment. In Narendra Singh Sangarv. Maltidevi and Ors., 1987 MPLJ, this Court has held that in case of concurrent findings of the Courts below that the wife and children were abandoned by the husband and he neglected them was considered proper for grant of maintenance in favour of the wife and children from the date of the application. In the aforesaid case, this Court also held that inherent powers under Section 482, Criminal Procedure Code have to be exercised sparingly and the High Court would not exercise its inherent powers under Section 482, Criminal Procedure Code and disturb the findings regarding grant of maintenance from the date of application. 11. In view, of the facts and circumstances of the case and the law applicable, I do not find any reason to interfere with the impugned orders of the Courts below in exercise of powers under Section 482, Criminal Procedure Code. 12. The application filed by the applicant is devoid of any merit and substance and the same is, accordingly, dismissed without any orders as to costs.