Jangir kaur vs Harnek Singh

J.S. Sekhon, J.

Jangir Kaur, petitioner, through this petition under Section 482 of the Code of Criminal Procedure, 1973, seeks the quashment or the order dated 1.9.1987 of the Judicial Magistrate, Nabha, copy Annexure P2 rejecting her petition for awarding maintenance under Section 125 of the Code of Criminal Procedure as well as of the Additional Sessions Judge, Patiala, copy Annexure P1, dismissing her revision against the order of the Judicial Magistrate, inter alia, on the ground of both the Courts having failed to appreciate the evidence of the witnesses in the right context.

The brief resume of facts relevant for the disposal of this petition is that Jangir Kaur Petitioner is an old lady of about 60 years. It is the admitted case of the parties that Jangir Kaur, Petitioner, had married Harnek Singh, respondent, and they were blessed with three children, including Mohinder Singh (PW2) and Jaswinder Kaur (RW3). Both these children are also married. About two years prior to the filing of the application under Section 125 of the Code of Criminal Procedure, the petitioner was turned out of her matrimonial house by her husband due to some domestic dispute. The petitioner then started residing with her brother in village Khanaure. She tried to effect a reconciliation with her husband through the intervention of some respectables but the adamant attitude of the husband did not allow any reconciliation between the parties. She filed the petition claiming maintenance to the tune of Rs. 500/ per months contending that she had no source of income and that her husband owns about 70 bighas of land and his yearly income is Rs. 25,000/.

The husband resisted the application contending that he had never turned out his wife. On the other hand, it was maintained that she had deserted him of her own accord. It is further stated that the wife was demanding the transfer of two killas of land in her name as a precondition to reside with the husband but on latter''s refusal to do so, she had left the house of her own accord. It is further stated that the petitioner is running a milk dairy and having an income of Rs. 1,000/ per month therefrom.

The learned Judicial Magistrate, Nabha, vide his order, copy Annexure P2, dismissed the petition of the wife for maintenance by holding that she has left her husband of her own accord when he refused to transfer two killas of land in her name. The evidence of Mohinder Singh and Jaswinder Kaur children of the parties supporting the version of the husband was also dismissed by the Additional Sessions Judge, Patiala, while agreeing with finding of the trial Court.

I have heard the learned counsel for the parties. There is considerable force in the contention of the learned counsel for the petitioner that both the lower Courts had misread the evidence of Mst Jangir Kaur in concluding that she had left the house of her husband when the latter failed to transfer the ownership of two killas of land in her name, as the perusal of the order of the Additional Sessions Judge reveals that Mst. Jangir Kaur had admitted having put the demand of transfer of two killas of land two days prior to the filing of the petition. Thus it cannot be said by any stretch of imagination that Mst Jangir Kaur had left the house of her husband towards the fag end of her life, that is at the age of 60 years on the grouse that the latter had refused to transfer two killas of land in her name. On the other hand, it appears that she had set up this demand only after her husband had turned her out and during the reconcilaition proceeding, she had done so in order to secure her subsistence during the remaining period of her life. Harnek Singh or Mohinder Singh RW2 or Jaswinder Kaur RW3 had failed to assign any plausible explanation and reason as to why an old lady of 60 years will leave the shelter of her husband''s house for no rhyme or reason. No doubt, the husband had offered to rehabilitate his wife before that trial Court, yet all the same it appears that he has not made this offer seriously as reconciliation process by this Court on 20.12.1990 clearly indicates that there were no chances of reconciliation between the old couple.

The learned counsel for the respondent laid much stress on the evidence of the children of the petitioner in order to persuade the Court that they would be the last person to depose against their mother, if actually she has not herself deserted her husband. There is not much force in this contention as the children would have more financial affinity with their father rather than the destitute mother, especially when the son is residing jointly with his father.

Consequently, under these circumstances there is no escape but to conclude that both the lower Courts had failed to appreicate the evidence in the right context which has resulted in grave miscarriage of justice. Thus both the orders, copies Annexures P2 and P1, of the lower Courts are quashed by accepting this revision petition. The case is, therefore, remanded to the trial Court on the limited point of fixing the quantum of maintenance on the basis of already existing evidence on record besides allowing the parties to lead evidence in this regard, if need be. The parties through their counsel are directed to appear before the trial Court on 4.3.1991.

JUDGMENT Accordingly