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2024 DIGILAW 559 (CHH)

Saraswati Sahu W/o Manrakhan Sahu v. Manrakhan Sahu S/o Ratiram Sahu

2024-08-06

PARTH PRATEEM SAHU

body2024
ORDER : 1. The applicants have filed this revision challenging the illegality and sustainability of the order dated 31.08.2021 passed in Criminal Case No. 378/2019 by the learned Family Court, Balodabazar, District-Balodabazar-Bhatapara whereby, the learned Family Court has dismissed the application filed under Section 125 of the Cr.P.C. seeking maintenance from the non-applicant. 2. Facts relevant for disposal of this revision are that Applicant No. 1 got married with Non-applicant No. 1 in accordance with the Hindu rites and rituals about 20 years ago from the date of filing of the application under Section 125 of the Cr.P.C. In the affidavit submitted by the applicant, date of marriage is mentioned as 09.05.1997. After a few months of marriage, Non-applicant No. 1 suspecting character of Applicant No. 1 started ill-treating and assaulting her due to which, brother of the Applicant No. 1 brought her back to her parents’ house. Thereafter, non-applicant did not make any effort to bring her back to matrimonial home. Applicant No. 1 gave birth to Applicant No. 2 in her parents’ house. Feeling aggrieved with the act of non-applicant in not taking care and maintaining them, the applicants have filed an application under Section 125 of Cr.P.C. on 16.12.2016 before the Court of Judicial Magistrate First Class, Simga, District Balodabazar-Bhatapara which was later on, transferred to the learned Family Court, District- Balodabazar-Bhatapara on 06.07.2019. 3. Application filed under Section 125 of Cr.P.C. was replied by non-applicant pleading therein that Applicant No. 1 resided with the non-applicant only for a period of 15 days and thereafter, she left her matrimonial home stating that she does not like him. Non-applicant made several efforts to bring her back, but, she did not return to her matrimonial home. It was also denied that during her stay in her matrimonial home, Applicant No. 1 became pregnant because after marriage, there was no physical relation between them, Applicant No. 2 is not his daughter. The income of non-applicant as pleaded in the application, was also denied. It is pleaded that no reason has been assigned for filing an application for maintenance after lapse of 20 years of separation. Applicant No. 1 is having 05 acres of agricultural land, she possess a house in her own name under the Indira Awas Scheme and is also running a Fancy Shop in the name of Rajeshwari Fancy Store and earning Rs. 20,000-25,000/- per month. 4. Applicant No. 1 is having 05 acres of agricultural land, she possess a house in her own name under the Indira Awas Scheme and is also running a Fancy Shop in the name of Rajeshwari Fancy Store and earning Rs. 20,000-25,000/- per month. 4. During trial, both the parties submitted documents in support of their claim and also examined witnesses. Applicants examined 04 witnesses in support of their claim including Applicant No. 1 and Applicant No. 2. Non-applicant exhibited as many as 14 documents and examined 02 witnesses including himself. 5. Learned Family Court while appreciating the pleadings, oral and documentary evidence brought on record by respective parties, dismissed the application under Section 125 of Cr.P.C. observing that the applicants are not entitled for the amount of maintenance. Learned Family Court while rejecting the claim for grant of maintenance considered that the application was filed with a delay of 20 years, no explanation is offered for delay, according to document Ex. A-1, the Applicant No. 1 is residing separately with consent. With respect to the rejection of claim of Applicant No. 2, learned Family Court observed that Applicant No. 2 has attained the age of majority before filing of the application for grant of maintenance and there is no provision for providing maintenance to a child who has attained the age of majority. 6. Learned counsel for applicants would submit that learned Family Court while rejecting claim of Applicant No. 1 has considered only two grounds, first that, application is filed with unexplained delay of 20 years and Applicant No. 1 residing separately with consent, taking note of the document Ex. A-1 which is per se illegal. The learned Family Court failed to consider the entire evidence, documentary and oral, in its true perspective. He submits that Ex. A-1 is a handwritten letter in the form of a divorce deed. It was executed in front of the witnesses, hence, it cannot be said that, it is a document giving consent to reside separately. He next contended that rejection of claim of Applicant No. 2 is also erroneous because the daughter even after attaining majority is residing with her mother. In support of the above contention, he referred to the documentary and oral evidence available in record. 7. He next contended that rejection of claim of Applicant No. 2 is also erroneous because the daughter even after attaining majority is residing with her mother. In support of the above contention, he referred to the documentary and oral evidence available in record. 7. Learned counsel for non-applicant vehemently opposes the submission and would submit that the order passed by the learned Family Court is a well reasoned order which is passed upon minute examination of the oral and documentary evidence, hence, it does not call for any interference. 8. I have heard learned counsel for the parties and also perused the records of the learned Family Court. 9. It is not in dispute that marriage between Applicant No. 1 and non-applicant was solemnized on 09.05.1997, as such, Applicant No. 1 is a legally married wife of non-applicant. In the application filed under Section 125 of the Cr.P.C. the applicants have clearly pleaded that after marriage, due to some dispute between the two, non-applicant illegally deserted Applicant No. 1. After sometime of desertion of Applicant No. 1, the non-applicant kept another woman as his wife and as such, there was no possibility of her to reside with non-applicant. After desertion, applicants are residing in the house of the parents of Applicant No. 1, there is no means for their survival and they are facing difficulty for their livelihood. Applicants have exhibited 07 documents in support of their claim. 10. Exhibit AW-1 is a handwritten document in a piece of paper affixed with revenue stamp under the head of “Talaknama” (divorce deed). In this document Ex. AW-1, the non-applicant has admitted in presence of the Panchas that Applicant No. 1 is carrying pregnancy of three months. It is further mentioned that due to dispute between the two, he has divorced Applicant No. 1 in the presence of the witnesses. The deed was signed by non-applicant, Applicant No. 1, the Up-sarpanch and Panch of the village panchayat and other witnesses. From the contents of Ex. A-1 it is apparent that it is not written by Applicant No. 1 rather, it is written by non-applicant mentioning that he has divorced Applicant No. 1. Document Ex. A-1 is not disputed by non-applicant in his evidence, rather in Para-6, he admitted execution of the divorce deed. 11. From the contents of Ex. A-1 it is apparent that it is not written by Applicant No. 1 rather, it is written by non-applicant mentioning that he has divorced Applicant No. 1. Document Ex. A-1 is not disputed by non-applicant in his evidence, rather in Para-6, he admitted execution of the divorce deed. 11. The parties to the proceeding are Hindu, therefore, divorce deed written in a paper in presence of witnesses is not admissible. However, for the purpose of considering the proceedings under Section 125 of Cr.P.C. which is a summary proceeding for grant for maintenance, it can be considered as a document exhibited by non-applicant for not keeping Applicant No. 1 along with him. Document Ex. A-1 in its form, contents and the evidence of the parties cannot be treated to be a consent given by Applicant No. 1 to reside separately, but it appears that for some dispute between the two, the non-applicant divorced the Applicant No. 1 and in such compelling circumstances, it cannot be expected by the Applicant No. 1, a lady, to reside with the non-applicant. Even thereafter, the learned Family Court erred in considering the document Ex. A-1 as the consent of Applicant No. 1 for residing separately. The circumstances under which the said document was executed by her was not taken into consideration by the learned Family Court and what further are contents of “Talaknama” [divorce deed]. 12. Under Section 125 of the Cr.P.C. divorced wife is entitled for maintenance. Hon’ble Supreme Court in the case of Smt. Vanmala vs. H.M. Ranganatha Bhatta, (1995) 5 SCC 299 has considered the issue with regard to the entitlement of a divorced wife who took divorce by mutual consent and observed thus: “3. Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-Section (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs.500/- in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the sub-section defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent has neglected or refused to maintain her. Counsel for the respondent, however, invited our attention to sub-section (4) of Section 125, which reads as under: “125. (4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” On a plain reading of this Section, it seems fairly clear that the expression ‘wife’ in the said sub-section does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded.” 13. In the case at hand, though there is no divorce by judicial proceedings, however, it is non-applicant who had written document mentioning that he has divorced the Applicant No. 1 in presence of witnesses and thereafter, kept another woman as his wife. The object of the provision under Section 125 of Cr.P.C. is to provide maintenance to wives, children and parents. The object of the provision under Section 125 of Cr.P.C. is to provide maintenance to wives, children and parents. Hon’ble Supreme Court in the case of Badshah vs. Urmila Badshah Godse and Another, (2014) 1 SCC 188 while considering the award of maintenance under application filed under Section 125 of Cr.P.C. has observed thus: “13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society. 14. Of late, in this very direction, it is emphasised that the courts have to adopt different approaches in “social justice adjudication” which is also known as “social context adjudication” as mere “adversarial approach” may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: “It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the f social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.” 15. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.” 15. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from” adversarial” litigation to social context adjudication is the need of the hour. 16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living-organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law. 17. Cardozo acknowledges in his classic: “.......no system of jus scriptum has been able to escape the need of it and he elaborates: “It is true that codes and statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often something more. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a Judge's troubles in ascribing meaning to a statute. Says Gray in his lectures: “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the Judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.” 18. The court as the interpreter of law is supposed to supply omissions, correct uncertainities, and harmonise results with justice through a method of free decision - libre recherche scientifique i.e. “free scientific research.” 14. In view of the aforementioned facts of the case, discussions made as also the object, which is sought to be achieved by framing provision under Section 125 of the Cr.P.C. which is in the nature of social justice, and the decision of the Hon’ble Supreme Court in the case of Smt. Vanmala (Supra), in the opinion of this Court, the learned Family Court erred in rejecting claim of Applicant No. 1 on sole ground that Applicant No. 1 is residing separately with consent and therefore, she is not entitled for maintenance, the said finding of the Family Court is not sustainable and the same is hereby is set-aside. 15. Other ground on which the learned Family Court denied the maintenance is delay in filing of the application. Under Section 125 of the Cr.P.C. a wife claiming maintenance has to prove that she is unable to maintain herself. In the case at hand, the claim of Applicant No. 1 is not rejected on the ground that she is having any income or able to maintain herself, but on the ground of delay in filing of application. Under Section 125 of the Cr.P.C. a wife claiming maintenance has to prove that she is unable to maintain herself. In the case at hand, the claim of Applicant No. 1 is not rejected on the ground that she is having any income or able to maintain herself, but on the ground of delay in filing of application. In the pleadings and the evidence, the applicants have pleaded that after desertion by her husband, Applicant No. 1 came to her parents’ house, started residing there and since then, her parents are maintaining Applicant No. 1 and her daughter. It appears that when that that source of maintenance also got some obstruction, the application is filed. The husband and father of the Applicant No. 2 is under an obligation to maintain his wife and children as observed by the Hon’ble Supreme Court in the case of Badshah (Supra). 16. In the aforementioned reasons and discussions, the second ground on which, the claim of the Applicant No. 1 is rejected is also not sustainable and it is hereby set-aside. 17. So far as rejection of the claim of Applicant No. 2/daughter on the ground that on the date of filing of the application under Section 125 of the Cr.P.C. she had already attained the age of majority, therefore, under the provisions of Section 125 of Cr.P.C. she is not entitled for any maintenance is concerned, in the opinion of this Court, this finding is also not sustainable. Claim of Applicant No. 2 is not rejected on the ground of her paternity and therefore, it is proved that the Applicant No. 2 is daughter born from the wedlock of Applicant No. 1 and non-applicant. In the school records also, father’s name of the Applicant No. 2 is mentioned as ‘Manrakhan’. Copy of the birth certificate of Applicant No. 2 is filed as Annexure A-5. The date of registration of birth certificate of Applicant No. 2 is mentioned as 23.06.1998 which is much before the date of filing of the application. Copy of the progress card of Class VIII is also placed on record in which name of the father of the Applicant No. 2 is mentioned as ‘Manrakhan’. The date of registration of birth certificate of Applicant No. 2 is mentioned as 23.06.1998 which is much before the date of filing of the application. Copy of the progress card of Class VIII is also placed on record in which name of the father of the Applicant No. 2 is mentioned as ‘Manrakhan’. True, it is that, under the provisions of Section 125 of Cr.P.C. the major child is not entitled to claim maintenance from parents, however, in the opinion of this Court, merely because the Applicant No. 2 is ineligible to seek maintenance under Section 125 of Cr.P.C. it would not be a ground to reject the claim of maintenance, if otherwise she is entitled in some other provisions of law, because the person who is unable to maintain herself and knocking the doors of the Court for same since 2019, will be forced to file another petition and she again has to put her claim from the first stage afresh. Hon’ble Supreme Court in the case of Jagdish Jugtawat vs. Manjulata and Others, (2002) 5 SCC 422 has considered this issue of grant of maintenance to the major daughter under Section 125 of the Cr.P.C. and held that benefit of personal law for awarding or continuing maintenance proceedings can be given to the applicant, in eligible under Section 125 of Cr.P.C. to avoid multiplicity of the proceedings. In the said case, Hon’ble Supreme Court has considered that the major daughter to entitle for maintenance under Section 20 (3) of the Hindu Adoption and Maintenance Act and observed thus: “2.........The Learned Single Judge was persuaded to maintain the order of the Family Court with a view to avoid multiplicity of proceedings. The relevant portion of the judgment of the High Court is quoted here: Thus, in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon’ble Supreme Court, the provisions of Section 125 Cr.P.C. are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon'ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under Section 125 Cr.P.C. on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub-section (3) of Section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference.” 3. In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Quasim relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 Cr.P.C. does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl. 4. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Cr.P.C. and Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Cr.P.C. and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for.” In the case at hand also, considering the fact that the applicant being unmarried daughter of non-applicant is entitled for maintenance, though under another statute, however, as per the ill-advice of the law knowing person, she had filed an application under Section 125 of the Cr.P.C. seeking maintenance in the year 2019. As of now, she already contested her claim for maintenance for last about five years without any means. In the said facts of the case, again relegating her to file another proceeding only on the technical error committed by som other will be too harsh for her and therefore, I am of the view that taking support of the decision of the Hon’ble Supreme Court in the case of Jagdish Jugtawat (Supra) maintenance can be awarded to her in this proceedings. In the view of the above discussion, learned Family Court erred in rejecting the claim of maintenance with respect to the Applicant No. 2 also. While setting-aside the said finding, it is ordered that the Applicant No. 2 would be entitled for maintenance till her marriage. 18. As the order passed by the learned Family Court, rejecting the claim of maintenance of the Applicants No. 1 & 2 is set-aside, this brings me to consider the quantum of maintenance to be awarded to the applicants. 19. Applicant No. 1 is examined as AW-3 before the learned Family Court. In her evidence, she clearly stated that her father-in-law is having 20 acres of land at Village Ghursena, out which, 05 acres of land is recorded in the name of the non-applicant (her husband). Her husband is operating private mini-bus/taxi from which, he is earning about Rs. 02 Lakhs per annum. In her evidence, she also denied the suggestion given by the counsel for non-applicant that she is running a cosmetic shop and thus, she is able to maintain herself and her daughter i.e. Applicant No. 2. 20. Her husband is operating private mini-bus/taxi from which, he is earning about Rs. 02 Lakhs per annum. In her evidence, she also denied the suggestion given by the counsel for non-applicant that she is running a cosmetic shop and thus, she is able to maintain herself and her daughter i.e. Applicant No. 2. 20. Applicant No. 2 is examined as AW-4 and in her evidence also, she denied the suggestion that the cosmetic shop appearing in the photograph N.A. 3 to be of her own and stated that it is of her maternal uncle. She further denied the suggestion that only because they were able to earn sufficiently to maintain themselves, therefore, for a long time, they have not filed any application for maintenance. 21. From the aforementioned evidence, it is appearing that the shop of which, photographs are exhibited as evidence by the non-applicant showing Applicant No. 2 inside the shop, is not the shop of the applicants, but it is the shop of the brother of Applicant No. 1 and maternal uncle of Applicant No. 2. Undisputedly, the applicants are residing in the house of the brother of Applicant No. 1 and maternal uncle of the Applicant No. 2 therefore, if for any reason in one of the photographs produced, Applicant No. 2 is appearing inside the shop, it cannot not be inferred that it is owned by the applicants. No documentary or any other admissible piece of evidence is produced by the non-applicant to prove that the cosmetic shop is owned and run by the applicants. 22. The non-applicant in his evidence in Para 22 has stated that he has sold the Bus, Tractor and Maruti Van and admitted that, after sale of the aforementioned vehicles, he had purchased 5.35 acres of land at village Ghursena. He also admitted that the said land was sold by him and at the time of sale of the land, the applicants have filed objection. He also admitted that he is having the house at Village Sargaon, District-Mungeli and sold the property of Village Gangwari, Ghursena. He admitted that there is 8.21 acres of land recorded in the name of his father at Village Gangwari. He also stated that in the year 2001, he has performed second marriage with another woman and from his second marriage, there are 03 sons and 02 daughters. 23. He admitted that there is 8.21 acres of land recorded in the name of his father at Village Gangwari. He also stated that in the year 2001, he has performed second marriage with another woman and from his second marriage, there are 03 sons and 02 daughters. 23. Considering the aforementioned evidence available in record, in particular, the admission of the non-applicant that he was having the motor vehicle like Mini-bus, Tractor and Maruti Van to which, he has stated to have been sold and purchased agricultural property on 5.35 acres and also sold some other properties, it appears that the non-applicant avoided purposefully to disclose his actual income and therefore, considering the age of the Applicant No. 1, in the facts of the case and considering the date of filing of the application, all facts of the case, I am inclined to award Rs. 3,000/- per month as maintenance to the Applicant No. 1 and Rs. 2,000/- per month as maintenance to the Applicant No. 2 till marriage. The amount of maintenance is payable from the date of filing of the application under Section 125 of the Cr.P.C. The non-applicant is permitted to pay the arrears of the amount of maintenance in easy installments within a period of 02 years, however, he will pay the monthly amount of maintenance without fail by 05th of every month. 24. Accordingly, the revision application is allowed in part.