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2000 DIGILAW 569 (PAT)

Shyamdeo Prasad v. State Of Bihar

2000-04-10

INDU PRABHA SINGH

body2000
Judgment 1. ORDER :- This application in revision filed under Ss. 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 28-6-1997 passed by Shri Narendra Kumar Srivastava, 5th Additional Sessions Judge, Siwan in Cr. Revision No. 215/95 by which the learned Additional Sessions Judge was pleased to set aside the judgment and order dated 1-7-1996 passed by Shri Chandra Bhushan Singh, Judicial Magistrate, First Class, Siwan in Misc. Case No. 13/94 . By his order the learned Judicial Magistrate granted maintenance at the rate of Rs. 300.00 per month to opposite party No. 2 and also at the rate of Rs. 200.00 per month to her son under the provisions of S. 125 of the Code. 2 It appears that opposite party No. 2, Malti Devi, wife of Shyamdeo Prasad (present petitioner) had filed an application under S. 125 of the Code before the Chief Judicial Magistrate, Siwan for grant of maintenance to her and also to her second son. She has contended that she was legally married wife of the present petitioner and her marriage was performed about 14 years ago. After her marriage she started living with the petitioner at his house as his wife and two sons were born to her out of this wedlock. After some time her relationship with the petitioner became strained as the petitioner being a truck driver had fallen in bad company. On 25-11-92 she was assaulted by the petitioner and his family members and was driven out of the house, since then she is leading a miserable life along with her second son having no source of income. The petitioner being a truck driver was earning Rs. 1500.00 per month besides also having landed property. Hence she claimed Rs. 1,000 per month as her maintenance. 3. The petitioner has contested her claim for claim of maintenance. He has contended that she was an corrupt lady and after giving birth of her first son she got entangled with one Baharan Ram and got illicit relationship with him and also others of her Naihar where she was leading a life of adultery. Opposite party No. 2 started residing at her fathers place since 1988 and in spite of repeated requests refused to come and live with the petitioner. Opposite party No. 2 started residing at her fathers place since 1988 and in spite of repeated requests refused to come and live with the petitioner. The petitioner also contended that he was only an casual labourer and was not a truck driver as alleged. He has got only 4 Katha of land the income from which is not sufficient even for his own livelihood. 4. When this case was transferred to the Court of the learned Judicial Magistrate named above three witnesses were examined on behalf of the opposite party No. 2 while the petitioner examined five witnesses. Opposite party No. 2 was not able to produce any document to show that the petitioner was possessed of 15 Bighas of land. The learned Judicial Magistrate dismissed the claim of the opposite party No. 2 by his judgment dated 1-7-1996 holding that opposite party No. 2 after her marriage with the petitioner was living in adultery and as such she was not entitled to maintenance. It was also held that the petitioner had no sufficient means to maintain his wife or her child. Against this order opposite party No. 2 preferred a revision which was heard and disposed of by the learned Additional Sessions Judge named above. After hearing the parties the Court of Additional Sessions Judge set aside the order of the trial Court by the impugned order and judgment and held that opposite party No. 2 was entitled to maintenance in the manner indicated above. 5. In the present petition it has been contended that the learned Additional Sessions Judge had failed to appreciate the facts and circumstances of the case. He had misread the judgment of the trial Court and came to a wrong finding. He erred in not discussing the issues as discussed by the trial Court. He did not properly appreciate the oral and documentary evidence on record. The judgment of the learned Additional Sessions Judge is perverse and against the evidence on record. On these grounds amongst others it has been contended that the impugned order and judgment be set aside. 6. On 24-11-1999 a supplementary affidavit has also been filed on behalf of the petitioner. Its copy has been served on opposite party No. 2 but no counter-affidavit on her behalf has been filed. On these grounds amongst others it has been contended that the impugned order and judgment be set aside. 6. On 24-11-1999 a supplementary affidavit has also been filed on behalf of the petitioner. Its copy has been served on opposite party No. 2 but no counter-affidavit on her behalf has been filed. In this supplementary affidavit it has been contended that after passing of the impugned order dated 28-6-1997 the Divorce Case No. 5/94 filed by the present petitioner against opposite party No. 2 was allowed by 9th Additional District Judge, Chapra vide his judgment dated 2-7-1998 in which the finding was recorded that opposite party No. 2 is living in adultery with one Baharan Ram and that she had deserted the petitioner. Along with this petition a copy of the judgment passed in Divorce Case No. 5/94 has also been annexed. 7. I have heard the parties in detail. Before proceeding to discuss the submissions made by the parties I would like to briefly mention the relevant dates. The order of the learned Judicial Magistrate rejecting the claim for maintenance of opposite party No. 2 was passed on 1-7-1996. This order was set aside by the learned Additional Sessions Judge by the impugned order dated 28-6-1997. After this the decree for Divorce was passed in the civil Court by the learned Additional District Judge on 2-7-1998 in Divorce Case No. 5/94. In this back ground I will now proceed to discuss the facts of this case as also the law involved. 8. It has been very seriously contended before me on behalf of the petitioner that opposite party No. 2 is not entitled to maintenance as she has already been divorced by the petitioner. It was submitted that in view of this divorce she had ceased to be the wife of the petitioner and, therefore, is not entitled to maintenance as per in the provisions of Sec. 125 of the Code. I do not find any merit in this contention. In this connection a reference may be made to the explanation given at the end of Sub-sec. (1) of Sec. 125 of the Code. I do not find any merit in this contention. In this connection a reference may be made to the explanation given at the end of Sub-sec. (1) of Sec. 125 of the Code. Explanation (b) runs as follows :- "(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried." From this definition it becomes clear that even after the divorce the wife continues to be the wife within the definition of this explanation and would, therefore, be entitled to maintenance. However, in this connection a reference may also be made to Sub-sec. (4) of Sec. 125 of the Code which runs as follows :- "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." Further a reference may also be made to Sub-sec. (5) of Sec. 125 which runs as follows :- "5. On proof that any wife in whose favour an order has been made under this section is living in adultary, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." Here the word "order" will mean the order for maintenance passed by the Magistrate. A reading of these two sub-sections will clearly show that in case it is found that the wife is living in adultery she will not be entitled to any maintenance. It further appears that even if an order of maintenance has been passed in favour of the wife the moment it is proved that she is living in adultery the order granting maintenance has to be cancelled. 9. I will next refer to Sub-sec. (2) of Sec. 12 of the Code which runs as follows :- "(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Sec. 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly." 10. As noticed above there is a valid order of divorce passed by the civil Court in Divorce Case No. 5/94 whose copy has been furnished alongwith supplementary affidavit. As noticed above there is a valid order of divorce passed by the civil Court in Divorce Case No. 5/94 whose copy has been furnished alongwith supplementary affidavit. No counter-affidavit denying this judgment of the civil Court has been filed. No statement has been made on behalf of the opposite party No. 2 that this judgment has been appealed against or has been set aside. From this it would appear that this judgment of the civil Court is very much in force. By this judgment the learned Additional District Judge passed a decree for divorce against the present opposite party No. 2. He directed that a decree for dissolution of the marriage be passed against the present opposite party No. 2. A number of issues were framed by the learned Additional District Judge. Issue No. 8 was whether the applicant (present petitioner) was entitled to get a decree of divorce for dissolution of his marriage on the grounds stated in the divorce petition. In paragraph 5 of the judgment the learned Additional Judge took up for consideration this issue and also the relevant law as contained in Sec. 13(1) of the Hindu Marriage Act according to which the marriage can be dissolved if it is proved that after its solemnisation either party has clearly sexual inter course with any person other than his or her spouse. A decree for divorce could be passed if it was proved that the present opposite party had deserted the present petitioner for a continuous period of not less than two years. In the paragraph the learned Additional Sessions Judge after taking into account the evidence of the present petitioner came to the conclusion that the present opposite party No. 2 was living with Baharan Ram and was having sexual inter course with him even since 1988 as a result of which a son was born to her. Thus, the learned Court in Divorce Case had held that she was living in adultery. This finding has been recorded by the civil Court. 11. On behalf of the petitioner it has been submitted that this finding recorded by the civil Court will have to be taken into consideration in the alteration of the order granting maintenance to opposite party No. 2. In this connection my attention has been drawn to Sub-sec. (2) of Sec. 127 of the Code which has already been noticed above. On behalf of the petitioner it has been submitted that this finding recorded by the civil Court will have to be taken into consideration in the alteration of the order granting maintenance to opposite party No. 2. In this connection my attention has been drawn to Sub-sec. (2) of Sec. 127 of the Code which has already been noticed above. According to this Sub-sec. the order granting the maintenance could be cancelled in consequence of any decision of a competent civil Court recorded a finding that opposite party No. 2 was living a adultery with one Baharan Ram. I have already noticed above Sub-sec. (4) and (5) of Sec. 125 according to which if it is proved that the wife is living in adultery she would not be entitled to maintenance. In view of the provisions of law on the subject it is perfectly clear that the order passed by the learned Additional Sessions Judge reverting the order passed by the learned Judicial Magistrate cannot be allowed to stand and has got to be set aside. Before concluding, however, It would like to briefly refer to the judgment and order passed by Shri N. K. Srivastava, the learned Additional Sessions Judge, Siwan. In paragraph 13 of his judgment he has mentioned that the learned trial Court has totally based his finding about the adultery of opposite party No. 2 on the affidavit of Baharn Ram (Ext. C). According to learned Additional Sessions Judge Ext. C could not be relied upon since this Baharan Ram has not been examined as a witness. The learned Additional Sessions Judge, has, however, completely misdirected himself on this point. As is clear from the judgment of the learned Judicial Magistrate he had heavily relied on the evidence of the husband (present petitioner) who was examined as PW. 5 before him. He has discussed his evidence to show that the present opposite party was living in adultery with Baharan Ram from which he could get one illegitimate son. Thus, the finding about adultery was not based only on Ext. C but also on the evidence of the husband (P.W. 5) which the learned Additional Sessions Judge has not taken into account. He has discussed his evidence to show that the present opposite party was living in adultery with Baharan Ram from which he could get one illegitimate son. Thus, the finding about adultery was not based only on Ext. C but also on the evidence of the husband (P.W. 5) which the learned Additional Sessions Judge has not taken into account. Further my attention has been drawn to paragraph 13 of the judgment of the learned Additional Sessions Judge according to which he has completely brushed aside the evidence adduced on behalf of the present petitioner by holding that the P.Ws. were gained over witnesses and had deposed before the learned Court below on the direction of the present petitioner. It is really surprising how and on what basis the learned Additional Sessions Judge would come to such sweeping conclusion without disclosing the reasons for the same. On the aforesaid basis he has allowed maintenance to present opposite party No. 2 and also to her minor son. It is really surprising to note that a Senior Officer of the rank of Additional Sessions Judge would come to such erroneous conclusions on wrong basis. 12. Be that as it may, it is clear that both in fact as well as on law the present revision petition is fit to be allowed. 13. In the result this revision petition is allowed and the impugned order passed by the learned Additional Sessions Judge is set aside. Petition allowed.