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2022 DIGILAW 982 (RAJ)

Roshanlal Meghwal v. Radha Meghwal

2022-03-28

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. The petitioner has preferred this revision petition claiming for the following reliefs:- "It is therefore, most humbly and respectfully prayed that this revision petition may kindly be allowed and the impugned judgments dated 16.10.2020 passed by the Court of Special Judge, SC/ST Case Udaipur and judgment dated 11.04.2019 passed by the Judicial Magistrate No. 1 (South) Udaipur may kindly be set aside with all consequential directions and interim orders may kindly be set aside consequence thereof applications as indicated herein above may kindly be allowed and further appeal filed by the petitioner may kindly be allowed." 3. Counsel for the petitioner submits that the petitioner was married to respondent no. 1 in the year 1990 and they had one daughter (Tanu) out of the matrimonial relationship in the year 1994. Counsel for the petitioner submits that an agreement of divorce was drafted between the petitioner and his wife on 19.07.2000, which was like a compromise and one time alimony of Rs. 50,000/- was stated to be given under the agreement aforesaid. Counsel for the petitioner submits that the maintenance deposit in FD No. 0094237 of Mewar Anchalik Gramin Bank, Debari Branch, Udaipur was called for by the learned trial court but details were not given by the respondent. Counsel for the petitioner submits that in para-6 of the claim petition, the wife has required Rs. 5,000/- for her and Rs. 5,000/- for her daughter-total Rs. 10,000/- whereas the daughter is now married and, therefore, no more maintenance is required for the daughter. Counsel for the petitioner also submits that in accordance with 125(4) Cr.P.C., the respondent is not entitled to seek any maintenance as she wilfully left her husband's house. Counsel for the petitioner further submits that as per the compromise, the wife's needs were settled, thus, any further reason of demand is contrary to the law. Counsel for the petitioner submits that the appeal preferred by both the parties before learned court below were contrary to the jurisdiction as the appeal did not lie. 4. Counsel for the petitioner further submits that as per the compromise, the wife's needs were settled, thus, any further reason of demand is contrary to the law. Counsel for the petitioner submits that the appeal preferred by both the parties before learned court below were contrary to the jurisdiction as the appeal did not lie. 4. Counsel for the petitioner has referred to the judgment of Hon'ble Apex Court in the matter of Deb Narayan Halder v. Smt. Anushree halder reported in AIR 2003 SC 3174 , decided on 26.08.2003, relevant para whereof reads as follows:- "19. We have also perused the evidence on record with a view to ascertain whether for any other reason the respondent was ill treated by the appellant. We have found from the evidence on record that the behaviour of the appellant has been throughout normal. It is admitted by the parties that they frequently went during vacations to visit different places. On some occasions they were even accompanied by the relatives of the respondent. The appellant permitted the respondent to continue her studies even after her marriage and that is how she secured her B.A. degree after marriage. He also arranged an agency of the UTI to keep her engaged and also opened a joint account in a bank which she could operate. All these facts go to indicate that for several years after their marriage they enjoyed normal marital relationship. In fact, there is evidence to show that the appellant used to praise his wife in the presence of others by complimenting her and giving her credit for the good performance of their son in his studies. This even the respondent has admitted in the course of her deposition. Apart from these we find it difficult to believe that if the appellant started torturing the respondent within 15 days of the marriage, the respondent would not have reported this matter at least to her mother. According to her mother, she came to know about her ill treatment 5 to 6 years after marriage. According to the respondent in her complaint Ex. 1 she had mentioned about such happenings to her mother about eight years after her marriage. According to her mother, she came to know about her ill treatment 5 to 6 years after marriage. According to the respondent in her complaint Ex. 1 she had mentioned about such happenings to her mother about eight years after her marriage. While there is reference to reports lodged by the respondent to the police regarding torture by the appellant, not one such report has been brought on record which may have been lodged before the respondent left her matrimonial home. Even relevant particulars are not disclosed. The only police report brought on record is one lodged after the respondent left her matrimonial home. We do not attach much importance to this report. There is no contemporaneous document in the form of letters which may have been written by the respondent to her friends or relatives mentioning about her being subjected to torture or harassment by the appellant. The respondent being an educated lady, it is difficult to believe that she would not have written letters to her friends and relatives during the twelve years that she lived with the appellant as husband and wife. Apart from her mother, the respondent has produced no evidence of prove that she was tortured and harassed by the appellant. The learned Magistrate also noticed that though they lived at different places around Calcutta during the period of twelve years after their marriage, not one witness was examined by the respondent to prove that the appellant treated the respondent with cruelty. On the other hand, some witnesses have been examined by the appellant to prove that they lived a normal life and there was no question of the respondent being tortured by the appellant for any reason whatsoever. Even the other facts which we have found support the case of the appellant that he had not treated the respondent with cruelty for any reason whatsoever. Learned counsel for the respondent laid great emphasis on the observation of the Magistrate that the appellant being a bank employee leaving for his work in the morning and returning late in the evening hardly had any time to ill treat the respondent. No doubt, there is such an observation in the order of the Magistrate, but that is not the basis of his findings. Too much emphasis on such a stray observation in the order is not justified. 20. No doubt, there is such an observation in the order of the Magistrate, but that is not the basis of his findings. Too much emphasis on such a stray observation in the order is not justified. 20. We therefore hold that the High Court was not justified in setting aside the findings recorded by the learned Judicial Magistrate. We have reached this conclusion after appreciating the evidence on record since there is no discussion of the evidence in the judgment of the High Court. Counsel for the respondent posed before us a question as a part of his submission as to why the respondent should leave her matrimonial home without any reason. In cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveals the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friends and relatives or recorded in any other document of contemporaneous nature. If really the respondent was subjected to cruelty and harassment in the manner alleged by her, we have no doubt she would have written about such treatment to her friends and relatives with whom she may have corresponded. The reports allegedly made by her to the police may have thrown some light on this aspect of the matter. Such evidence is completely absent in this case. It appears to us that the parties lived happily for many years after the marriage till about the year 1996, whereafter there was some misunderstanding which ultimately resulted in their separation. Why this happened, it is difficult to fathom, but the evidence on record does not convince us that the respondent was subjected to torture and harassment by the appellant, and certainly not for the reasons alleged by her. The Court is not permitted to conjecture and surmise. It must base its findings on the evidence produced before it by the parties. The enquiry by the Court is restricted to the evidence on record and the case pleaded by the parties. The Court is not permitted to conjecture and surmise. It must base its findings on the evidence produced before it by the parties. The enquiry by the Court is restricted to the evidence on record and the case pleaded by the parties. It is not permissible to the Court to conjecture and surmise and make out a third case not pleaded by the parties only to answer the query such as the one posed to us." 5. Counsel for the petitioner has further relied upon the judgment of Hon'ble Apex Court in Rakesh Malhotra v. Krishna Malhotra reported in 2020(14) SCC 150 decided on 07.02.2020, relevant para of which reads as follows:- "16. Since the Parliament has empowered the Court under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act or similar such enactments. But the reverse cannot be the accepted norm. 17. In the circumstances, we allow these appeals, set aside the view taken by the High Court and direct that the application preferred under Section 125 of the Code shall be treated and considered as one preferred under Section 25(2) of the Act." 6. Counsel for the petitioner has also relied upon the judgment in the matter of Rajnesh v. Neha (Criminal Appeal No. 730 of 2020) decided on 04.11.2020, relevant portion of which reads as follows:- "It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., 1973 or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., 1973 or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant." 7. Counsel for the respondent refutes applicability of the aforesaid precedent law and submits that the petitioner is an Assistant Engineer in the Electricity Department and earns well. He himself wanted to remarry and, thus, he persuaded the respondent to enter into compromise, whereas she was living alone with her daughter and she still requires support from the petitioner. 8. This Court after examining the matter in the narrow jurisdiction of revision finds that any interference on the ground that the appeal was not maintainable at this stage and would not be fruitful because mere technicality cannot become a ground to declare a well considered maintenance to the wife null and void. Moreover two appeals were filed by both the parties. The averment of Section 125(4) Cr.P.C., would not apply in the present case because admittedly the husband wanted to remarry and after leaving the respondent had two children from the second marriage. 9. This Court is of the opinion that when the husband himself was of the desire to remarry, then it was his duty to maintain the first wife i.e. the respondent herein, particularly, when he has sufficient source of earning being a government employee and working as Assistant Engineer in Electricity Department. 10. The precedent laws cited by counsel for the petitioner do not apply to the present case as the perspective of the present case is not that the respondent is living in adultery or is living separately without any sufficient reason but was left out matrimony for facilitating second marriage of the petitioner. 11. The judgments cited by counsel for the petitioner are not applicable to the case at hand. 11. The judgments cited by counsel for the petitioner are not applicable to the case at hand. The claim made in the claim petition do not have any significance at this stage because the requirements keep on changing and in the dimensions of today claim of Rs. 10,000/- per month for the maintenance of wife is not excessive, particularly, when the petitioner is a government servant. 12. The revision petition, thus, is dismissed.