Research › Search › Judgment

Chhattisgarh High Court · body

2019 DIGILAW 537 (CHH)

Kunti Bai v. Tekram

2019-04-02

SANJAY K.AGRAWAL

body2019
JUDGMENT : Sanjay K. Agrawal, J. This Criminal miscellaneous petition under Section 482 of Cr.P.C. is directed against the order dated 13/08/2013 passed in Criminal Revision No. 28/12 whereby learned Additional Sessions Judge, Dongargarh has partly reversed the order dated 24/07/2012 passed in Criminal Case No. 86/2008 by the learned trial Court, rejecting the application filed by the applicant/wife under Section 125 of Cr.P.C. for grant of maintenance from the non-applicant/husband. 2. The applicant and the non-applicant are wife and husband respectively in relation, married in the year 2000 and out of their wedlock, they have a son namely Yogendra Kumar. Within an year of marriage, dispute arose between them which led to the filing of application by the applicant/wife for grant of maintenance, stating in the application that non-applicant/husband is not maintaining her and she has no source of income therefore, Rs. 3000/- per month be granted to her as maintenance. In the said application, the non-applicant/husband set up a plea that the applicant/wife is not living with him as per her own will and is leading an adulterous life with one Prakash and as such, she is not entitled for maintenance. Learned trial Court found favour with his defense and rejected the application under order 125 of Cr.P.C. filed by the applicant/wife holding that she is living in adultery and thus, is not entitled to grant of maintenance. 3. In revision preferred by the applicant/wife, learned Additional Sessions Judge partly reversed the finding of the trial Court holding that the non-applicant/husband has failed to prove that the applicant/wife is living in adultery, but has further held that the applicant/wife has refused to live with the non-applicant/husband without any sufficient reason and ultimately, dismissed the Criminal Revision vide order dated 13/08/2013 against which this Criminal Miscellaneous Petition has been preferred. 4. Mr. Shalvik Tiwari, learned counsel for the applicant/wife submits that the Revisional Court is absolutely unjustified in rejecting the application after having held that she is not living in adultery. It was for the non-applicant/husband to establish that the applicant/wife has refused to live with him without any sufficient reason and as such, the application deserves to be allowed by setting aside the orders passed by both the Courts below. 5. Mr. Punit Ruparel, learned counsel for the non-applicant/husband submits that this Criminal Miscellaneous Petition under Section 482 of Cr.P.C. deserves to be dismissed being without merit. 6. 5. Mr. Punit Ruparel, learned counsel for the non-applicant/husband submits that this Criminal Miscellaneous Petition under Section 482 of Cr.P.C. deserves to be dismissed being without merit. 6. I have heard learned counsel for the parties, considered their rival submissions made herein and went through the records with utmost circumspection. 7. The relationship of husband and wife is not in dispute. The applicant/wife has simply pleaded that she be granted Rs. 3000/- per month as maintenance from non-applicant/husband as she has no source of income to meet her needs. The plea set up by the non-applicant/husband that the applicant/wife is living in adultery was found favour with by learned trial Court, but that has been reversed by the Revisional Court. Therefore, the next question would be whether the applicant/wife has refused to live with the non-applicant/husband without any sufficient cause. The non-applicant/husband has simply pleaded that the applicant/wife is living in adultery there fore, she is not entitled for maintenance. 8. It is not a case where the applicant/wife has refused to live with the non-applicant/husband without any sufficient cause. The burden was on the non-applicant/husband to plead and establish that the applicant/wife has neglected to live with him without any sufficient cause, but he has neither pleaded nor established this fact, whereas the applicant/wife has established that she is the wife of the non-applicant but has been neglected by her husband and is not being provided with maintenance and has no other source of income to maintain herself. Therefore, she is entitled for maintenance and as such, the Revisional Court is completely misdirected in holding that the applicant/wife has refused to live with the non-applicant/husband without any sufficient cause. After setting aside the finding of adultery in favour of the applicant/wife, the order passed by the Revisional Court dated 13/08/2013, to the extent of refusing maintenance is liable to be set aside. 9. The Madhya Pradesh High Court, in the matter of Phuljhar Basor (Smt) Vs. Munnil Lal, 1998 2 MPWN 94 held that such unsubstantiated allegation itself amounts to cruelty. 9. The Madhya Pradesh High Court, in the matter of Phuljhar Basor (Smt) Vs. Munnil Lal, 1998 2 MPWN 94 held that such unsubstantiated allegation itself amounts to cruelty. The following has been held by the Madhya Pradesh High Court in the case of Phuljhar Basor (Smt.) (supra) :- "Quite apart from the above, on a perusal of the objection filed by the husband which has been taken note of by the learned Magistrate, it is noticeable that there are allegations by the husband pertaining to the character and integrity of the wife. He has alleged that she had run away with one Jhallu to Panjab and had stayed with him for four to five years. The attempt of the husband, as it appears, is to deprive the wife of grant of maintenance on the ground she has disentitled herself by her own conduct. Except taking such a plea, nothing has been brought on record to substantiate the same. It is well settled in law that if allegations of this nature are made and they remain unsubstantiated, it would be a justifiable ground on the part of the wife to desert the husband. In this context I may profitably refer to the decision in the case of Smt. Shyamkali Vs. Bhaiyalal alias Ganesh, 1997 CrJR 280 (MP) wherein this Court registered its view to the effect that if false allegations of unchastity are made against a wife, it is a cruelty itself." 10. In the instant case, plea of adultery was found favour with by the trial Magistrate in favour of non-applicant/husband which was reversed by the Additional Sessions Judge holding that the applicant/wife is not living in adultery and applicant is entitled for maintenance as non-applicant/husband has failed to establish that applicant/wife is living separately without sufficient cause, as such, from the date of order of the Revisional Court i.e. 13/08/2013, the applicant/wife is certainly entitled for grant of maintenance from the non-applicant/husband and the amount of maintenance is hereby fixed as Rs. 2000/- per month looking to the price index and her need and her documents supported thereof. 11. With the aforesaid direction, this Criminal Miscellaneous Petition under Section 482 of the Cr.P.C. is allowed to the extent indicated herein above and the impugned order is partly set aside. No costs.