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2013 DIGILAW 1231 (PAT)

Seema More v. Suresh Kumar More

2013-10-09

ADITYA KUMAR TRIVEDI

body2013
JUDGMENT : A.K. Trivedi, J. - Wife, Seema More is aggrieved by order dated 25.11.2006 passed by Principal Judge, Family Court, Bhagalpur in Misc. Case No. 15 of 2006 whereby and whereunder a prayer for grant of maintenance has been refused. 2. A petition under Section 125 of the Cr PC was filed on behalf of petitioner disclosing the fact that she was married with O.P., Suresh Kumar More on 26.5.2004 according to Hindu rites and rituals and at the time of marriage the family gifted items enumerated therein. During her stay at sasural, her husband along with mother-in-law and other family members insisted upon to procure Rs. 2 Lacs which was conceded by her father during course of negotiation and non-fulfilment thereof, had lent with further action of torture and cruelty (detailed thereof). Any how, she was taken to her maika where she begot a child on 6.8.2005. On repeated request, the Opposite Party, though arrived at her place but failed to accompany the petitioner along with kid on the pretext that till the payment of Rs. 2 Lacs is made, she will not be honoured. It has further been disclosed tha1in the aforesaid background a case under Section- 498-A has also been drawn against the Opposite Party and his family members. On the other hand, a Matrimonial Suit has also been brought at the behest of Opposite Party in Kolkata. Then, she had detailed the source of income and on account thereof, claimed Rs. 5000/- per month as maintenance. 3. On the other hand, Opposite Party after his appearance had clearly asserted that on false and frivolous allegation a case under Section 498-A of the IPC has been instituted. It has also been submitted that petitioner is a lady of extreme temperament and as she was not cooperating with and intending to enjoy the matrimonial status in its true spirit, as consequence thereof, Matrimonial Suit was filed under Section-9 of the Hindu Marriage Act for getting company of his wife, although, from her conduct, she does not warrant such treatment. It has further been submitted that she has deserted on her own wish and as a result of which the maintenance petition is not maintainable. He has further offered an opportunity to the petitioner for reunion for enjoying marital status. It has further been submitted that she has deserted on her own wish and as a result of which the maintenance petition is not maintainable. He has further offered an opportunity to the petitioner for reunion for enjoying marital status. It has further been asserted that the source of means whatever been disclosed are imaginary and far from truth. 4. On behalf of both the parties, the witnesses were examined and then thereafter, learned Court below rejected the prayer on the ground that there is wilful desertion on the part of the petitioner which prohibits grant of maintenance in terms of Section 125(4) of the Cr PC. 5. It has been contended on behalf of the petitioner that the finding arrived at by the learned lower Court is out of own illusion without having any sort of support from the evidences available on the record. It has further been submitted that so far Hindu families are concerned, basically, the marriage is treated as a holy sacrament and on account thereof, at least, the female will not withdraw from her marital home unless and until there is compelling circumstances before her to take such a step and the evidence of the petitioner is full of such details whereunder she has been compelled to remain at her maika. That part of allegation is also found corroborated with the evidence of father and mother. Therefore, the finding recorded by the learned lower Court is not at all maintainable. 6. It has also been submitted that the status of the petitioner has not been denied by the opposite party. So the finding recorded by the learned lower Court is contrary to the material available on the record as well as is against the spirit of law. 7. On the other hand, learned lawyer on behalf of O.P. submitted that the finding recorded by the learned lower Court is based upon after analyzing the evidence adduced on behalf of respective parties. It has also been submitted that the learned lower Court has rightly come to the conclusion that petitioner is guilty of her own fault. She had deserted the opposite party knowingly and willfully and in the aforesaid background in terms of 125(4) of the Cr PC she is not at all entitled for maintenance. 8. Learned APP endorsed the same view. 9. She had deserted the opposite party knowingly and willfully and in the aforesaid background in terms of 125(4) of the Cr PC she is not at all entitled for maintenance. 8. Learned APP endorsed the same view. 9. After perusal of the learned lower Court, it is evident that the learned Presiding Judge had taken a novel method while dealing with the trial. He himself had cross-examined the witnesses which runs in so many pages. 10. Section-20 of the Family Courts Act speaks overriding effect and has been explained in following terms :- "The Provision of this Act shall have effect notwithstanding other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 11. That means to say, after enforcement of the Family Courts Act, it has got a preferential consideration with regard to the event prescribed under Section 7 of the Act whereunder jurisdiction has been vested in Family Courts relating to adjudication. Section – 10 deals with the procedure. Subsection-I commands suit having civil flavour while sub-section (2) deals with procedure relating to Chapter-IX of the Cr PC and the same is quoted below :- "(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court." 12. Section-15 deals with the manner whereunder oral evidence has to be recorded. It speaks that the evidence of witnesses should not be recorded at length rather the Judges after examination of witnesses will record the memorandum of substances what the witnesses had deposed and virtually that is also the procedure prescribed under Section 126 of the Cr PC permitting the proceeding to sail as summons trial. As per Section-16 only the evidence having formal in nature is to be taken on affidavit. Contrary to it, the L.C. record speaks that the evidence of respective parties have been taken on the basis of affidavit in terms of Civil Procedure Code and then the Court itself indulged in cross-examining the witnesses at length covering page after page. 13. Virtually, by such step the motto of the Family Courts Act has been frustrated. Contrary to it, the L.C. record speaks that the evidence of respective parties have been taken on the basis of affidavit in terms of Civil Procedure Code and then the Court itself indulged in cross-examining the witnesses at length covering page after page. 13. Virtually, by such step the motto of the Family Courts Act has been frustrated. Though, we are sailing in 21st century but even today, the theme of equality is yet to be achieved. Still, the female folks are considered to be household articles and they are being treated like so. 14. From the evidence of both the parties, it is also apparent that both the parties are divorcee and their present marital status is admittedly, on account of re-marriage. This theme has been taken into consideration purposely to see the probability. It is also apparent from their evidence that both have got an issue from their earlier marriage. 15. None else than the parties themselves could testify their assertions, allegations and aspersions. Seema More, the petitioner has been examined as PW 4. Her examination-in-chief is on the affidavit whereunder she had detailed the event, the source of income and the claim. During cross-examination at para-25, she had stated that she had come to Bhagalpur after 25 days of her stay in Kolkata. She again visited Kolkata in the month of December. In para-26, she had stated that at that very time, her father had come. In para-27, she had stated that she was not aware of the fact whether her husband had come to Kolkata station to see them off because of the fact that she was not in a fit mental condition at that moment. In para 40, she had stated that when Suresh More had come after birth of child, at that very time, expenses were demanded. She had further stated that her father had given assurance for payment of Rs. 2 Lacs. She had also requested her father from "Kolkata to fulfil his promise. She had further stated that Suresh earns Rs. 50,000/- per month and for him Rs. 2 Lacs is not more. She had further stated that she does not want to stay with Suresh More because she is apprehending her life in case she resides with him. 2 Lacs. She had also requested her father from "Kolkata to fulfil his promise. She had further stated that Suresh earns Rs. 50,000/- per month and for him Rs. 2 Lacs is not more. She had further stated that she does not want to stay with Suresh More because she is apprehending her life in case she resides with him. She had further stated that she had mentioned the fact in her S.A. that she had requested her husband to accompany her to Kolkata. She had requested her husband 2-4 days after birth of child. She had further stated that at that very time also she was apprehensive but even then, she had offered and requested like so but now she is not ready to go with her husband. 16. On the other hand, Suresh More, opposite party had also filed an affidavit relating to his examination-in-chief whereunder he had denied the assertion, the allegation and quantum of earning, source of income and further disclosed that his wife herself deserted him. In para-22, he had stated that Seema More came back to Bhagalpur on her own before filing his case at Alipur. He tried to know the cause but was not permitted by the father of Seema More. He had further stated that for the first time, Seema stayed only for 25 days and second time she resided there approximately for the span of three months. He had further stated that for the purpose of settling differences, he had come to Bhagalpur but his father-in-law declined to talk on the pretext that it was not good opportunity and then thereafter, he had not advanced such offer. The case under Section 498-A of the IPC was instituted after 5 or 6 days of birth of the child. He had further divulged the cause of dispute as Seema More was hotel freak and he should purchase a vehicle and also have an independent residence. 17. After having analytical approach of evidences of both the parties, it is apparent that the finding recorded by the learned lower Court is not at all found to be substantiated therefrom. 18. He had further divulged the cause of dispute as Seema More was hotel freak and he should purchase a vehicle and also have an independent residence. 17. After having analytical approach of evidences of both the parties, it is apparent that the finding recorded by the learned lower Court is not at all found to be substantiated therefrom. 18. As admitted by Seema More herself that after the birth of her daughter when her husband visited her, though, she was apprehensive, even then, she had shown her eagerness to join the company of her husband which was a natural recourse on account of giving birth to a child for providing congenial, harmonic and familiar atmosphere for providing affection of parents. After all, the parents are expected to give up their own comforts, desire and lust for the welfare of the child. It is a natural phenomenon and then she had further detailed that she is apprehensive of her life in case, she joins the company of her husband. 19. In the case of Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, reported in the case of AIR 1981 SC 1972 , the scope of refusal has been taken into consideration apart from other paragraphs, paragraph-20 appears to be relevant for the present purpose which quoted herein below :- "20. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband's parents or relations, such apprehension also would be manifestly a reasonable justification for the wife's refusal to live with her husband. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband's parents or relations, such apprehension also would be manifestly a reasonable justification for the wife's refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive." 20. Thus, the dismissal of petition on the pretext of desertion by the petitioner on her own volition is not at all found to be substantiated apart from the fact that there is flagrant violation of the procedural law as referred above during conduction of trial by the learned lower Court. Consequent thereupon, the same is set aside. 21. Petition is allowed. The matter is remitted back to the learned lower Court to proceed afresh in accordance with law. Petition allowed.