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2009 DIGILAW 130 (CHH)

Mayaram Nishad v. Jamuna Bai

2009-04-09

D.R.DESHMUKH

body2009
Order This Criminal Revision by the petitioner/husband is directed against the order dated 13.10.2006 passed in Criminal Revision No. 194/2005 by the Additional Sessions Judge, Bemetara, District Durg whereby in a revision preferred by the respondent/wife while setting aside the dismissal of the application under Section 125 Cr.P.C. of the respondent/wife herein by the Judicial Magistrate First Class, Bemetara in Miscellaneous Criminal Case No. 1/2004, the petitioner/husband herein was ordered to pay maintenance of Rs.1000/- per month to the respondent herein from the date of application. 2. Admittedly, marriage between the petitioner/husband and the respondent/wife was solemnized in the year 1982. Gauna ceremony took place in 1983 and out of their marital wedlock, a son namely Tukeshwar was born in 1984. It is also not in dispute that since the year 1985, the respondent/wife is living separately in her maternal home in village Kongiyakhurd. 3. For the first time, the respondent/wife filed an application under Section 125 of the Cr.P.C. on 23.10.2003 on the averment that a year after birth of Tukeshwar, the petitioner/husband started harassing her for bringing money from her father and finally somewhere around the year 1985 she was turned out of her matrimonial house by the petitioner herein. A year after this, the respondent/wife went with her father Hagroo and Kotwar Nemdas to the house of the petitioner where after wrongly confining them inside a room the petitioner forcibly got a document executed by them and refused to keep the respondent. In the hope that in future at some point of time, the petitioner would take her back, the respondent did not lodge a report or take any legal action even after leaving the matrimonial home for 5 to 6 years. The respondent lived with her father who maintained her till his death. Thereafter Motim Bai, maternal aunt of the father of the respondent, maintained her till her death 3 months prior to the filing of the application under Section 125 of the Cr.P.C. The respondent had no means of livelihood and was unable to maintain herself. The petitioner refused to keep the respondent with him despite efforts by the respondent on 12.10.2003 and 19.10.2003 whereupon application under Section 125 Cr.P.C. was filed on 23.10.2003. The petitioner refused to keep the respondent with him despite efforts by the respondent on 12.10.2003 and 19.10.2003 whereupon application under Section 125 Cr.P.C. was filed on 23.10.2003. It was pleaded that the petitioner herein was drawing salary of Rs.9,000/- as a Teacher in Government service and had around about 12 acres of irrigated agricultural land and other income from business. An amount of Rs.3,000/- as monthly maintenance was claimed. 4. The petitioner herein denied the averment of the respondent in toto and pleaded that after the birth of Tukeshwar, the respondent/wife had suo moto gone to live at her maternal home and had developed illicit relationship with some person. Two years after the birth of Tukeshwar, the respondent and the petitioner had mutually agreed to live separately and on 02.10.1989 a document was executed evidencing that they had mutually agreed to live separately and the marital tie between them had come to an end. After this, the respondent returned to Kongiyakhurd and was living there of her own volition. The allegations of execution of document dated 02.10.1989 per force after wrongful confinement of the respondent, her father and the Kotwar were false because had it been true, the respondent wife would have reported the matter to police or taken legal action. In sum and substance, the petitioner herein contended that the marital tie between them had come to an end on 02.10.1989, and therefore, the respondent had ceased to be his wife. It was also pleaded that the respondent/wife was able to maintain herself as she cultivated her agricultural land in village Kongiyakhurd. 5. Before the Judicial Magistrate First Class, the respondent wife examined herself and Rampratap A.W.2 and her brother Samalia A.W.3. The petitioner herein proved document Sahamati Patra dated 02.10.1989 Ex.D.1 and besides testifying also examined Bhaiyaram N.A.W.2. The learned Judicial Magistrate First Class, Bemetara recorded a finding that there was no evidence on record to show that the respondent herein was leading an immoral life. After appreciating oral evidence and the Sahamati Patra Ex.D.1, a finding was recorded that the two spouses were living separately by mutual consent and therefore under Section 125 (4) of the Cr.P.C., the respondent herein was not entitled to maintenance. No finding was recorded that the marital tie between the two spouses had come to an end w.e.f. 02.10.1989. 6. After appreciating oral evidence and the Sahamati Patra Ex.D.1, a finding was recorded that the two spouses were living separately by mutual consent and therefore under Section 125 (4) of the Cr.P.C., the respondent herein was not entitled to maintenance. No finding was recorded that the marital tie between the two spouses had come to an end w.e.f. 02.10.1989. 6. Being aggrieved, the respondent/wife preferred Criminal Revision No. 194/2005 before the Additional Sessions Judge, Bemetara. The learned Additional Sessions Judge arrived at a different finding that by Sahmati Patra Ex.D.1 dated 02.10.1989, the relationship between the two spouses had come to an end by mutual consent and the petitioner herein had also admitted that he had remarried thereafter. On these premises, it was held that as a divorced wife the respondent/wife was entitled to maintenance till she remarried and was unable to maintain herself. On such finding, the learned Additional Sessions Judge set aside the order dated 19.07.2005 passed by the Judicial Magistrate First Class and ordered the petitioner herein to pay monthly maintenance at the rate of Rs.1000/- to the respondent/wife from the date of application. 7. Shri K. A. Ansari, learned Senior Counsel appearing on behalf of the petitioner/husband argued that the learned Additional Sessions Judge acted beyond the scope of the revisional jurisdiction in re- appreciating the evidence and coming to a conclusion different than the one drawn by the Judicial Magistrate First Class without holding that the finding recorded by the J.M.F.C. was either contrary to law or perverse. It was also argued that in her application under Section 125 of the Cr.P.C., the respondent/wife did not claim maintenance as a divorced wife of the petitioner. The fact that from the year 1985 the respondent/wife was living separately from her husband without any demur substantiated that she was living separately from her husband by mutual consent as evidenced by the Sahmati Patra Ex.D.1. Unless the revisional Court came in close quarters with the order passed by learned J.M.F.C. and arrived at a conclusion that the said order dated 19.07.2005 suffered from illegality or perversity, the learned Additional Sessions Judge, while allowing the revision, had acted beyond the scope of revisional jurisdiction by setting aside the order dated 19.07.2005 passed by the Judicial Magistrate First Class, Bemetra by arriving at a different finding on the material on record. 8. 8. On the other hand, Shri P.P. Sahu, learned counsel for the respondent/wife argued in support of the impugned order and urged that if the pleading by the petitioner/husband and the document Ex.D.1 (Sahmati Patra) were to be accepted, the respondent/wife was, as a divorced wife, entitled to be maintained by the petitioner/husband till she remarried. Reliance was placed on Vanamala (Smt.) v. Shri H.M. Ranganatha Bhatta, 1995 (II) M.P.W.N. 162, Harish Raisen v. Smt. Kavitaba Raisen, 2007 (4) M.P.L.J. 137 and Rohtash Singh v. Smt. Ramendri and others, AIR 2000 SC 952. 9. Having considered the rival submissions, I have perused the impugned order dated 13.10.2006 passed by the Additional Sessions Judge, Bemetara and the order dated 19.07.2005 passed by Judicial Magistrate First Class, Bemetara and also the record. In paragraphs 8 and 9 of the impugned order, the learned Additional Sessions Judge did not find any illegality in the order dated 19.07.2005 passed by the Judicial Magistrate First Class. However, on perusal of Sahmati Patra Ex.D.1 and placing reliance on a judgment rendered in Vanamala (Smt.) v. Shri H.M. Ranganatha Bhatta (supra), it arrived at the conclusion that living separately by mutual consent does not come in the way of a divorced wife to receive maintenance till she re-married. I shall now examine whether the learned Additional Sessions Judge was justified in taking the above view? The respondent/wife did not claim maintenance as a divorced wife. The petitioner denied the entitlement of the respondent/wife to receive maintenance on the ground that the marital tie between the parties was snapped on 02.10.1989 when Sahmati Patra Ex.D.1 was executed by the parties. Burden of proving this was on the petitioner/husband. A perusal of the testimony of the petitioner/husband shows that at no place did he mention that the relationship between him and the respondent/wife had come to an end on execution of the document Ex.D.1. Although the respondent/wife admitted that Ex.D.1 bears her thumb impression as also the signature of her father and the Kotwar yet it does not transpire from the testimony of the petitioner that the respondent/wife had affixed her thumb impression on document Ex.D.1 after it was read over to her and admitted to be correct by her. The petitioner - Mayaram did not assert anywhere in his testimony that as per custom prevalent the relationship between him and the respondent/wife had come to an end. The petitioner - Mayaram did not assert anywhere in his testimony that as per custom prevalent the relationship between him and the respondent/wife had come to an end. All that he stated in paragraph 5 was that after the execution of the document Ex.D.1 both spouses were living separately. In this view of the matter, since the respondent/wife did not claim maintenance as a divorced wife and the evidence of the petitioner did not show that the relationship of husband and wife had ended on 02.10.1989 or that the respondent/wife had affixed her thumb impression on document Ex.D.1 after the same was read over to and admitted by her to be correct, the finding of entitlement of the respondent/wife to receive maintenance as a divorced wife of the petitioner herein by the learned Additional Sessions Judge is contrary to law and facts. I am of the considered opinion that the Sahamati Patra Ex.D.1 does not break the marital tie between the parties and could at the most be construed as showing mutual consent to live separately, and therefore, learned Additional Sessions Judge was not justified in awarding maintenance to the respondent/wife as a divorced wife by taking a view different than the one taken by the learned J.M.F.C. 10. The case law relied on by Shri P.P.Sahu, learned counsel for the respondent/wife does not help the respondent in any manner because in the cases cited by him a decree for divorce between the two spouses had been passed. However, in the present case, divorce has not been effected between the parties. The respondent/wife also did not claim maintenance as a divorced wife. The petitioner did not utter a word in his testimony that the marital tie between him and the respondent was snapped on execution of document Ex.D.1. All that he stated was that they were living separately. Therefore, the Sahamati Patra Ex.D.1 does not snap the marital tie between the petitioner and the respondent. 11. The only question that now remains for consideration is whether learned Judicial Magistrate First Class, Bemetara was justified in holding that under Section 125 (4) of the Cr.P.C. the respondent/wife was disentitled to maintenance on the ground that she was living separately from her husband by mutual consent. Admittedly, the marriage between two spouses was solemnized in the year 1982. Gauna was performed in 1983. Admittedly, the marriage between two spouses was solemnized in the year 1982. Gauna was performed in 1983. A child was born in 1984 and thereafter in 1985 the respondent separated from her husband. The document Ex.D.1 dated 02.10.1989 does show that the petitioner and the respondents were living separately by mutual consent. The pleadings of the respondent/wife and the evidence to show that the document Ex.D.1 dated 02.10.1989 was got executed per force is wholly unworthy of any credit because had it been true the respondent/wife would not have hesitated to lodge a police report or to take any other legal action against the husband. Shri P.P.Sahu, learned counsel for the respondent/wife admitted that the respondent did not ever take any step for restitution of conjugal rights. Thus, the document Ex.D.1 clearly evidences that the respondent/wife was living separately from her husband by mutual consent. The fact that after separating from her husband in the year 1985, the respondent/wife did not file any application for receiving maintenance from her husband for as many as 18 years also substantiates that during all this period, the respondent/wife was living separately from her husband by mutual consent. The finding recorded by the J.M.F.C. that the respondent/wife and the petitioner were living separately by mutual consent, and therefore, under sub-section (4) of Section 125 of the Cr.P.C. the respondent/wife was not entitled to receive maintenance having been founded on proper appreciation of evidence, oral as also documentary, cannot be faulted with. Even the learned Additional Sessions Judge did not find any illegality in the said finding and erred in taking a different view by holding that the respondent/wife was entitled to maintenance as a divorced wife. The Additional Sessions Judge had thus clearly overstepped the jurisdiction vested in it by law while exercising revisional jurisdiction. 12. In this view of the matter, the revision deserves to be and is accordingly allowed. The impugned order dated 13.10.2006 passed by the Additional Sessions Judge is set aside while affirming the order dated 19.07.2005 passed by the Judicial Magistrate First Class, Bemetara.