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2001 DIGILAW 520 (MP)

Sayabai v. Gullu

2001-07-19

S.K.KULSHRESTHA

body2001
Short Note The applicants have filed this revision against the order dated 19.12.1996 of the learned Additional Sessions Judge, Multai, District Betul, in Criminal Revision No. l/96, by which the learned Judge has set aside the order dated 28.1.1995 of the learned Additional Chief Judicial Magistrate, Multai in Misc. Criminal Case No. 70/90 to the extent the order directed payment of maintenance to applicant No. 1 in the sum of Rs. 300/-. The learned Additional Sessions Judge has also modified the direction for payment of maintenance at the rate of Rs. 200/- per month to the applicant No.2 and reduced it to Rs. 150/- per month. As per the case of the applicants, the applicant No. 1 was married to the non-applicant in the year 1978 and from this marriage a son, applicant No. 2 Meghraj, was born. After about two and a half years of their marriage, while the applicant No. 1 was pregnant, she had come to her parents, house where applicant No.2 was born. According to the applicant No.1, the sister of her husband had been married to her brother, who had fallen into a well and died at the time when the applicant No. 2 was hardly a month old. On hearing about the death of his sister, the non-applicant had come to the house of the parents of the applicant" No.1 and beat her saying that she would also meet the same fate. It was alleged that in June, 1990 the non-applicant husband has contracted another marriage and a case under section 494 of IPC was pending against him. The applicants, therefore, claimed maintenance on the ground that the non-applicant had neglected and refused to maintain the applicant No.1 and her son applicant No. 2. The non-applicant in his reply before the Court stated that his sister Karnla, who was married to the brother of his wife, has died in suspicious circumstances. The applicant No.1 had left him for no valid reason and started living with her brother Ganesh and had refused to come back to him despite notices having been sent to her. It was also stated that the applicant No.1 was able to maintain herself from her income while the non-applicant husband did not have any land and was only a labourer. It was also stated that the applicant No.1 was able to maintain herself from her income while the non-applicant husband did not have any land and was only a labourer. Learned Additional Chief Judicial Magistrate, on the basis of evidence adduced by the parties, allowed the maintenance to the applicant No. 1 in the sum of Rs. 300/- and to applicant No.2 in the sum of Rs. 200/- per month from the date of his order which, in revision by the non-applicant husband, has been modified and the direction for payment of maintenance to the wife has been set aside and maintenance amount of Rs. 200/- granted to the applicant No.2 has been reduced to Rs. 150/- per month. It is against this order that the applicant wife has filed the present revision. Learned counsel for the applicants has submitted that the learned Additional Sessions Judge has erred in holding that since for a long period of 10 years no claim for maintenance was made by the wife and she had also not stated in her application that on account of illness she was unable to maintain herself and no reliable evidence was adduced as regards her inability to maintain herself, it could not be said that on account of such inability, it became necessary for her to claim maintenance from her husband. Learned counsel has referred to paragraph 9 of the judgment of the learned Additional Chief Judicial Magistrate in which it has been recorded that she had produced the prescription of the Doctor as regards her ailment. Learned counsel for the non-applicant has, on the contrary, submitted that the applicant wife was not entitled to claim any maintenance as she had no justification for leaving the matrimonial home and to refuse to live with her husband. Reference has also been made to the decision of this Court in Leelabai v. Raghunath Prasad [1981(1) M.P. Weekly Notes 160] in support of the contention that it was not a case where at the time the wife had left her husband, the husband had contracted a second marriage. Reference has also been made to the decision of this Court in Leelabai v. Raghunath Prasad [1981(1) M.P. Weekly Notes 160] in support of the contention that it was not a case where at the time the wife had left her husband, the husband had contracted a second marriage. Learned counsel has also referred to the decision in Kamla Bai v. Gajanand (1984 M.P. Weekly Notes 170) to the effect that where the wife had left her husband's house voluntarily and there was no evidence that she had ever been ill-treated by her husband, and second marriage was contracted after a long time, the wife could not claim maintenance taking undue advantage of her own default, especially when the husband was not guilty of any cruelty or neglect of the applicant. In the statement of applicant Sayabai PW 1, she has herself stated that initially when she lived with her husband for about three years, her husband had treated her well and did not cause any harassment to her. Learned counsel has on the basis of the said admission of the applicant wife, submitted that it was clearly, a case where the wife, without any rhyme or reason, had deserted her husband and despite three notices, she had not come back to the husband. It is, therefore, a case where, from the admitted facts, it is clear that the husband neither neglected the wife nor refused to maintain her. It was the wife alone who refused to live with him without any justification. It is not a case where on account of any second marriage contracted by husband she was justified in her refusal to live with him as even per the allegation of the applicant, the second marriage was contracted much later. The facts of the case are, therefore, similar to the facts present in the case Kamla Sai v. Gajanand (supra) in which the claim for maintenance in similar circumstances was rejected. The case is clearly one where the wife had voluntarily withdrawn from the company of her husband without any reasonable cause and she was, therefore, not entitled to claim maintenance especially when she had not accepted the repeated offers of the husband to live with him. The case is clearly one where the wife had voluntarily withdrawn from the company of her husband without any reasonable cause and she was, therefore, not entitled to claim maintenance especially when she had not accepted the repeated offers of the husband to live with him. As regards reduction of the amount in the case of applicant No.2, the learned Judge has reduced the amount on the ground that even as per the claim made by the applicants, a sum of Rs. 150/- per month had been claimed for Meghraj and, therefore, he was not entitled to maintenance at the rate of Rs. 200/- per month. Thus, no ground is made out requiring any interference in the impugned order. This revision is, therefore, dismissed.