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2001 DIGILAW 80 (CHH)

Shail Kumari v. Parmarath Singh

2001-07-24

R.S.GARG

body2001
ORDER R.S. Garg, J. 1. The applicant-wife being aggrieved by the order dated 23-2-2001 passed in Criminal Revision No. 110/98 by the learned Additional Sessions Judge, Mungeli confirming the order dated 24-2-1998 passed in M.Cr.C. No. 76/93 by the learned Judicial Magistrate First Class, Mungeli rejecting her application for grant of maintenance, has filed this petition under Section 482, Cr.PC. 2. The facts in nut-shell are that the applicant filed a petition under Section 125, Cr.PC for grant of maintenance inter alia pleading that the applicant was married to the non-applicant, the non-applicant treated her with cruelty, turned her out of the house and contracted second marriage. She also submitted that after desertion by the non-applicant she came to her parents' house where she was maintaining herself but as her father had expired she is unable to maintain herself. In the premises aforesaid, she prayed for maintenance. The respondent inter alia contended that as the applicant did not beget a child, she herself required the non-applicant to contract another marriage and as she herself was a consenting party, the second marriage would not provide any foundation in favour of the present applicant. It was also contended that the applicant was possessed of sufficient means and as she has failed to prove that she is unable to maintain herself, she is not entitled to any maintenance. 3. The parties joined the issue and led evidence. The applicant examined her own-self while the respondent examined his own-self and also examined three more witnesses. The respondent in support of his contention filed as many as five documents to contend that the applicant was possessed of sufficient means. The learned Trial Court after hearing the parties came to the conclusion that as the present applicant was possessed of sufficient land which she had transferred just before the institution of the application, she would not be entitled to any maintenance. The Revisional Court observed that from the evidence of the defendant it was clear that the applicant was possessed of sufficient means, therefore, she was not entitled to maintenance. 4. Shri Ansari, learned counsel for the applicant-wife, submits that the documents on which strong reliance was placed by the non-applicant were neither the certified copies nor were put to the present applicant, therefore, the two Courts were not entitled to place their reliance upon the same. 4. Shri Ansari, learned counsel for the applicant-wife, submits that the documents on which strong reliance was placed by the non-applicant were neither the certified copies nor were put to the present applicant, therefore, the two Courts were not entitled to place their reliance upon the same. He submits that the Courts below did not properly appreciate the facts which arc floating on the surface of the record. According to him, it is no more in dispute that the respondent had contracted second marriage and therefore the applicant in accordance with the provisions of law would be entitled to separate residence and maintenance. He submits that in absence of proper and legal evidence, the Court below could not hold that the applicant is possessed of sufficient means. 5. Smt. Tripathi on the other hand submits that from the documents it would clearly appear that about 3.66 acres of land was possessed by the present applicant, who just for filing the present application transferred the property in favour of her brother and this conduct of the applicant would disentitle her from the maintenance. She however submits that if the Court comes to the conclusion that the documents on which the non-applicant was placing reliance were required to be put to the present applicant, then the matter may be remitted to the Trial Court for further trial. 6. I have heard the parties at length. 7. The two Courts have relied upon the documents Ex. D-1 to D-5. So far as these documents are concerned, not even a single document was put to the applicant in her cross-examination. It is not the case of the present non-applicant that on the date of the cross-examination the documents were not available with them. If such documents were available with the non-applicant, and he was proposing to use the said documents in his defence, then he was obliged and duty bound to show the documents to the present applicant and seek her explanation. When a document is not shown to a witness, then reliance on such document would certainly be contrary to the principles of natural justice because on one side the document is not being shown to the person and at the same time the party and the Court arc using the said documents to non-suit the other side. 8. When a document is not shown to a witness, then reliance on such document would certainly be contrary to the principles of natural justice because on one side the document is not being shown to the person and at the same time the party and the Court arc using the said documents to non-suit the other side. 8. From the order passed by the Revisional Court, it appears that it has placed its strong reliance on these documents to hold that the present applicant was possessed of certain land, she had transferred certain lands in favour of her brother and she had also received certain land in gift. 9. In the opinion of this Court, the approach of the two Courts was contrary to law. The Courts below should have seen that the documents on which reliance was being placed were not shown to the applicant and her explanation was not sought. No questions have been put to the applicant that she had transferred certain lands in favour of her brother just to project her case under Section 125, Cr.PC. In the opinion of this Court, the Court below also misread Ex. D-2 in observing that on 1-5-1993 the properties were transferred. In fact, from Ex. D-2, it would appear that on 1-5-1993 an application for mutation was filed. It is not known to anybody that on what date the transfer was effected. The approach of the Trial Court in observing that the property still continues to be owned by the present applicant cannot be approved. In any case, the non-applicant was required to put all these documents to the applicant and was further required to put his defence to the applicant. 10. In the opinion of this Court, the Two Courts were unjustified in rejecting the applicant's application. 11. Instead of passing any final order in the matter, I consider present to be a fit case for its remand to the Trial Court. The orders passed by the two Courts are set-aside. The parties shall appear before the Trial Court on 20-8-2001. The applicant and the non-applicant shall be given proper opportunity to lead further evidence. If the applicant wishes to contend that the documents on which reliance is being placed by the non-applicant are inadmissible in evidence, then she shall be free to raise such objections. The parties shall appear before the Trial Court on 20-8-2001. The applicant and the non-applicant shall be given proper opportunity to lead further evidence. If the applicant wishes to contend that the documents on which reliance is being placed by the non-applicant are inadmissible in evidence, then she shall be free to raise such objections. The applicant would be entitled to lead further evidence in support of her case. The non-applicant would be entitled to produce the certified copies of the documents and would also be entitled to summon the departmental witnesses to prove the documents. 12. It is however made clear that this Court is not setting aside the findings recorded by the two Courts that the non-applicant had contracted the second marriage. It is necessary to observe that the applicant has proved that she is entitled to live separately and is entitled to maintenance. The Trial Court shall be required to consider that what amount should be paid to the applicant towards maintenance and whether she is at all entitled to the maintenance or not in view of the defences raised by the non-applicant. 13. Taking into consideration that the matter is pending since 1993, I further direct that the applicant shall be entitled to make an application for grant of interim maintenance. After hearing the parties, the Court below shall be entitled to pass orders on the said application in accordance with law. 14. The petition is allowed to the extent indicated above. 15. Misc. Criminal Case allowed.