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2000 DIGILAW 1231 (MP)

Usha Bai v. Nihal Singh

2000-11-20

S.C.PANDEY

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This revision is directed against the Order dated 18th Feb. 2000 passed in Criminal Revision No. 126/98 by Ist Additional Sessions Judge. Raisen arising out of order dated 30.9.98 passed in M.J.C. No. 23/96 by the Judicial Magistrate First Class, Raisen. The applicant filed an application under section 125 of the Code of Criminal Procedure for maintenance alleging that the non-applicant Nihal Singh was her husband and he had turned her out of his house without any reason. It was further alleged that the non-applicant had remarried and he had sufficient means to pay the maintenance amount. It was also stated that she was the owner of 12-13 acres of irrigated land. The non-applicant denied that he deserted the applicant without any cause. It was his case that after the birth of a child the applicant went away to her parental home and refused to come back despite an attempt made be the parents of the non-applicant. It was asserted that the applicant wanted the non-applicant to live in her parental home. It was denied that he had remarried. It was asserted that he was having no land and was a mere labourer. The learned Magistrate after recording the evidence came to the conclusion that the applicant was entitled to maintenance at the rate of 500/- per month but the Court below did not specify the date from which the maintenance had to be awarded. Therefore, this Court takes it that his order was operative from the date of passing of the order i.e. from 30.9.98. The learned Magistrate was of the view that evidence led by the applicant regarding second marriage was acceptable and therefore gave a finding in favour of the applicant to the effect that the non-applicant had remarried. Further, it was held that it was neither proved nor disproved that the applicant left her matrimonial home and went to her parental home on account of fact that non-applicant was at fault. Nor did the learned Magistrate accept the fact that non-applicant had proved his case that the applicant left her matrimonial home without any sufficient cause. However, the learned Magistrate found that as a matter of fact after weighing the matter either side that the Joint Hindu Family of which the non-applicant was a member had 12 acres of land and consequently it was held that the non-applicant had sufficient means for paying the maintenance amount. However, the learned Magistrate found that as a matter of fact after weighing the matter either side that the Joint Hindu Family of which the non-applicant was a member had 12 acres of land and consequently it was held that the non-applicant had sufficient means for paying the maintenance amount. It appears that the learned Additional Sessions Judge while deciding the Criminal Revision was of the view that the finding regarding second marriage of the non-applicant with one Sunita is acceptable. However, the learned Additional Sessions Judge interfered with the order of the learned Magistrate First Class, Raisen on the ground that it was not proved that the applicant was ousted from her matrimonial home at the instance of the non-applicant. Further, the Additional Sessions Judge was of the view that the property belonging to the non-applicant was not sufficient for granting the maintenance to the applicant. In this revision, the only question that has to be decided is whether the learned Sessions Judge was justified in interfering with the order of the Magistrate. It cannot be disputed that the second marriage of the husband would entitle the wife to live away from the husband. This finding of second marriage has not been disturbed by the learned Additional Sessions Judge, therefore, the initial leaving of the house on the part of Ushabai, the applicant is of no significance for deciding this revision. The fact remains that the applicant entitled to refuse to live with her husband on the count that he had remarried. This fact in itself was sufficient to entitle her for maintenance. Therefore, the learned Addl. Sessions Judge could not have upset the order of the trial Court on the ground that the applicant had left the house of her husband without any sufficient cause. As to the question of maintenance, it is almost ironical that the Court below has found that the applicant had a second wife whom he could maintain but the first wife who had the legal claim to maintenance cannot be maintained. The trial Court had given a finding that the non-applicant had sufficient means to maintain the applicant. This finding was neither perverse nor illegal. Moreover, the family of the non-applicant had some land. This fact was not even denied on the part of the father of the non-applicant. The trial Court had given a finding that the non-applicant had sufficient means to maintain the applicant. This finding was neither perverse nor illegal. Moreover, the family of the non-applicant had some land. This fact was not even denied on the part of the father of the non-applicant. The father of the non-applicant had admitted that about 10 acres of land was initially recorded in the name of the grand-father in the cross-examination. It appears that the trial Court had validly drawn an inference from the fact, on record that there was sufficient income accruing to the family of the non-applicant and the non-applicant could pay maintenance amounting to Rs. 500.00 per month. The result is that this revision succeeds and is allowed. The impugned order dated 18.2.2000 is hereby set aside and that of the trial Magistrate is hereby restored. It is directed that non-applicant shall pay to applicant Rs. 500.00 per month from 30.9.98. This Court has not taken into consideration the copy of the Khasra Panchshala filed alongwith this revision by way of additional evidence for the reason it has been held by this Court that the Additional Sessions Judge was not justified in interfering with the finding recorded by the trial Court.