Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 974 (PAT)

Sulochana Devi v. State Of Bihar

2000-08-09

D.N.PRASAD

body2000
Judgment 1. This criminal revision is directed against the order dated 9-9-1999 passed in M. P. Case No. 248/98 by the learned Principal Judge, Family Court, Dhanbad, whereby and whereunder the application filed on behalf of the petitioner for maintenance under Sec. 125 Cr. P.C. was rejected and the petitioner was directed to deposit a sum of Rs. 500.00 as cost. 2. The short facts giving rise to this application is that the petitioner had filed a petition in the Court of Principal Judge,Family Court u/S. 125 Cr. P.C. for maintenance. It is stated that the marriage of the petitioner with the Opposite party No. 2 was solemnised on 20-5-1996 according to Hindu Rites and Customs. At the time of marriage, the parent of the petitioner had given gold and silver ornaments and cash amount of Rs. 30,000.00 . After marriage the petitioner started living in her matrimonial home but after expiry of few months, the opposite party No. 2 and his family members started torturing her and demanded a sum of Rs. 30,000.00 as dowry. The petitioner had also filed a criminal case against the opposite party No. 2 and others, being Tundi PS Case No. 0049/98. It is also alleged that the opposite party No. 2 performed second marriage with one Babita Devi and the petitioner has got no source of income to maintain herself. 3. The Opposite party No. 2 filed show cause on the Court below. Witnesses were examined and after hearing both sides, the Court below rejected the plea of the petitioners maintenance. 4. The learned counsel appearing on behalf of the petitioner submitted at the very outset that the petitioner is legally married wife of O. P. No. 2 and she has been residing at her parents house under compulsion as the opposite party No. 2 already performed second marriage and the petitioner has been neglected by her husband-O. P. No. 2. It is also submitted that the petitioner has got no source of income to maintain herself and is facing trouble in these hard days, but the learned Court below passed the impugned order illegally without appreciating the evidence on record properly. It is also submitted that the petitioner has got no source of income to maintain herself and is facing trouble in these hard days, but the learned Court below passed the impugned order illegally without appreciating the evidence on record properly. It is also argued that the petition of maintenance was rejected on the flimsy ground that the complainant could not prove the second marriage of opposite party No. 2, when it is settled that even if second marriage is not proved, the wife who has got no source of income to maintain herself is entitled for the maintenance.The learned counsel also relied upon the case reported in (1999) 6 SCC p. 326 : (1999 Cri LJ 3668) (Rajathi V/s. C. Ganesan). 5. On the other hand, the learned counsel appearing on behalf of the opposite party No. 2 contended before me that the opposite party No. 2 is ready to keep the petitioner in his house but the petitioner does not want to reside with opposite party No. 2 as well as, petitioner could not establish the story of second marriage and as such she is not entitled for the maintenance. 6. Perused the Lower Court records. There is no doubt that the petitioner is legally married wife of opposite party No. 2. There is also no cogent rebuttal that the petitioner has got no source of income to maintain herself. There is a specific allegation that the opposite party No. 2 performed second marriage with Babita and he has been residing with her. It is also evident that the petitioner had instituted a criminal case being Tundi PS Case No. 0049/98 against the opposite party No. 2 and others for the offence u/S. 498A, 323, 506 IPC and 3/4 of the Dowry Prohibition Act and in the said case the police after completing investigation submitted chargesheet against the opposite party No. 2 and others. 7. The victim petitioner clearly stated in her evidence that she was driven away from the house after second marriage performed and the opposite party No. 2 has got Grocery shop and landed property and he has been earning Rs. 3000.00 per month.To this effect, there is no denial in the evidence of opposite party No. 2, except that he is ready to keep the petitioner. 8. 3000.00 per month.To this effect, there is no denial in the evidence of opposite party No. 2, except that he is ready to keep the petitioner. 8. The Apex Court held in Rajathis case (1999 Cri LJ 3668)(supra) that Sec. 125 is enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. The High Court also observed that the wife did not plead as to since when she was living separately. This is not quite relevant consideration. Even though the wife was unable to prove that the husband had remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. The statement of the wife that she was unable to maintain herself, would be enough and it would be for the husband to prove otherwise. 9. In the instant case, it has been specifically and emphatically stated that the petitioner wife is unable to maintain herself whereas the opposite party No. 2, the husband has got shop and landed property and also earning a sum of Rs. 3000.00 per month.The institution of the criminal case itself proves and establishes about the torturing and neglecting attitude on the part of the opposite party and that is the sufficient reason for the petitioner to live separately. The petitioner being the legally married wife of the opposite party No. 2 and as such she is entitled for the maintenance to maintain her life peacefully. The learned Court below committed error in rejecting the prayer on the flimsy ground that the petitioner could not prove the second marriage, which is not required on the part of the petitioner and as such the judgment of the learned Court below suffers from the illegalities and it is fit to be set aside. 10. Having regard to the facts and circumstances of the case, I find merit in the application, which is accordingly allowed. The judgment dated 9-9-1999 is, hereby, set aside. Since, the petitioner is entitled to have maintenance to maintain her life. 10. Having regard to the facts and circumstances of the case, I find merit in the application, which is accordingly allowed. The judgment dated 9-9-1999 is, hereby, set aside. Since, the petitioner is entitled to have maintenance to maintain her life. Hence, the opposite party No. 2 is directed to pay a sum of Rs. 400.00 per month as maintenance to the petitioner and the said maintenance shall be payable from the date of filing of the application for maintenance under Sec. 125 Cr. P.C.Application allowed.