Harvinder Kaur vs Paramjit Singh

M.L. Singhal, J.—This revision is directed against the order of Additional Sessions Judge, Sangrur dated 23.7.1990 whereby he declined the prayer of Smt. Harvinder Kaur for maintenance on the premise that she and Paramjit Singh had agreed mutually to live separate from each other and therefore, she was not entitled to maintenance and allowed maintenance to child Amrinder Paul Singh @ Rs. 100/-per mensum payablew.e.f.9.6.1988 i.e. when the Chief Judicial Magistrate decided their application u/s 125, Criminal Procedure Code for maintenance. Through this revision, they have prayed for the setting aside of this order and restoration of the order passed by the Chief Judicial Magistrate, Sangrur dated 9.6.1988 allowing maintenance @ Rs. 400/- per mensum to Harvinder Kaur and Rs. 200/- per mensum to Amrinder Paul Singh payable w.e.f. 9.6.1988.

Facts:

Harvinder Kaur instituted application u/s 125, Criminal Procedure Code against Paramjit Singh on her own behalf and on behalf of her child Amrinder Paul Singh on the allegations that she was married to him on 6.2.1979 according to Sikh rites and ceremonies. On 11.11.1979, she gave birth to child Amrinder Paul Singh from the loins of Paramjit Singh. Some time after marriage, he and his mother started ill-treating and taunting her saying that the dowry brought was inadequate. He gave her beating several times on one pretext or the other. He demanded money for the purchase of motor cycle. He mercilessly gave her beating and filthily abused her when he found that his demand was not being fulfilled. In December, 1985, she was given beating mercilessly and was turned out of the matrimonial home saying that if she meant her rehabilitation into the matrimonial home, she should bring motor cycle from her parents. Panchayat was taken to him by her father with a view to advise him that he should keep her in the matrimonial home but to no effect. Since December, 1985, she has been putting up with her father alongwith her child. Her parents are looking after them both. Paramjit Singh has not cared to send them even a penny after December, 1985 though he is gainfully employed in Milk Plant, Sangrur getting Rs. 1,200-1300/- per month. Besides, he sells milk yielded by two buffaloes and thus earns Rs. 1,500/-per mensum. She claimed maintenance @ Rs. 300/- per mensum for herself and Rs. 200/- per mensum for her child.

Paramjit Singh contested this application urging that she is not entitled to any maintenance as they are putting up separate with their mutual consent. They could not adjust with each other and therefore, a divorce deed was scribed on 8.9.1979 at Sangrur which was signed by them and attested by witnesses and their parents. She gave up claim to maintenance so far as the child in her womb was concerned.

On the conclusion of the trial of this application, Chief Judicial Magistrate, Sangrur allowed maintenance to them vide order dated 9.6.1988 as indicated above. Aggrieved from this order dated 9.6.1988 passed by Chief Judicial Magistrate, Sangrur, Paramjit Singh went in revision to the Court of Session. Vide order dated 23.7.1990, Additional Sessions Judge, Sangrur accepted the revision qua Harvinder Kaur and declined her prayer to maintenance and slashed maintenance awarded to the child to Rs. 100/-per mensem w.e.f. 9.6.1988. Aggrieved from this order dated 23.7.1990 passed by Additional Sessions Judge, Sangrur, Harvinder Kaur and Amrinder Paul Singh have knocked the door of this Court through this revision.

In this revision, the short question that requires to be determined is "whether Harvinder Kaur and Paramjit Singh had agreed mutually to live separate from each other disentitling Harvinder Kaur to maintenance". For disentitling Harvinder Kaur to maintenance, Additional Sessions Judge has relied upon documents Exs. R1 and R2. Document R1 is labelled as "Talaqnama". Ex. R1 cannot operate as talaqnama as it was not Muslim marriage where a husband could pronounce talaq by uttering thrice "I divorce thee, I divorce thee, I divorce thee".

While seeking admission to JBT (Part I) for which interview was held on 11.9.1980, she did not describe herself as Harvinder Kaur wife of Paramjit Singh but she described herself as Harvinder Kaur d /o Manmohan Singh. She made application to SDO (Civil), Sangrur for the preparation of yellow card. In that application Ex. R2, she described herself as a divorcee. That application was verified by Inspector and he recommended the preparation of yellow card for Harvinder Kaur. Additional Sessions Judge did not view document Ex. R1 as deed of divorce. He viewed it as mutual consent between Harvinder Kaur and Paramjit Singh to live separate from each other. Document Ex. R1 cannot operate as a deed where the husband and wife had agreed to live separate from each other with their mutual consent. If document Ex. R1 had been genuine, Harvinder Kaur would not have given up claim to maintenance to the child at least which she was carrying in her womb i.e. Amrinder Paul Singh. She would not have allowed Paramjit Singh to be in absolute freedom to remarry without fastening any liability on him to maintain her and the child which was in her womb then. Assuming that she was a divorcee, she was entitled to be maintained because "wife" as defined in Section 125, Criminal Procedure Code includes woman who has been divorced or has obtained a divorce from her husband and has not remarried. She has denied that she is a divorcee. She rather stated that she cohabited till November, 1985 and she was turned out of the matrimonial home in December, 1985. Paramjit Singh has harped on one tune namely that there had been divorce between them and she is not entitled to maintenance because she had given up her claim to maintenance and the claim of the child to maintenance in document Ex. R1. If there had been agreement between them to live separate from each other with their mutual consent, she would not have filed maintenance application in March, 1986 alleging that she was turned out of the matrimonial home in December, 1985. There is no evidence that any lumpsum payment was made to the wife at the time when they arrived at alleged agreement to live separate from each other in September, 1979 incorporated in document Ex. R1.

Right granted to the wife and children for maintenance u/s 125, Criminal Procedure Code is a very serious and valuable right. There must be cogent evidence to show that this right had been given up by the wife or the child''s mother as the case may be. Husband has not stated about the differences between them which had made their living together impossible and therefore, document Ex. R1 cannot be viewed as operating as mutual consent between them for their living separate.

In my opinion, Additional Sessions Judge unjustifiably refused maintenance to the wife. Wife Harvinder Kaur is allowed maintenance @ Rs. 300/- per mensum as claimed by her with effect from 9.6.1988. Child is allowed maintenance @ Rs. 200/- per mensum w.e.f. 9.6.1988. There is evidence that Paramjit Singh is earning while there is no evidence that Harvinder Kaur earns. It is her mother who is running a school at Sangrur. There is no evidence that that school gives her any income.

For the reasons given above, the order of Chief Judicial Magistrate, Sangrur is restored to the extent indicated above and the order of Additional Sessions Judge is set aside to the extent it has refused maintenance to the wife altogether and maintenance to the tune of only Rs. 100/- per mensum to the child. Revision is thus allowed in the said terms.