Joginder Kumar vs Kashmiri Devi

Surjit Singh, J.—Petitioner is aggrieved by the judgment, dated 23.9.2004, of learned Sessions Judge, whereby, accepting the revision petition of Respondent Kashmiri Devi, against the order dated 31.5.2003, of learned Judicial Magistrate, her (Respondent''s) petition u/s 125 Code of Criminal Procedure has been allowed and maintenance @ Rs. 500/- per month, granted.

Respondent filed a petition for grant of monthly maintenance allowance, u/s 125 Code of Criminal Procedure, alleging that she had been ousted from the matrimonial home in the year 1991 and ever since, she had not been provided any maintenance. It was stated that the Respondent was unable to maintain herself, while the Petitioner was a man of means, earning about Rs. 5000/-to Rs. 6,000/- every month. Petitioner, in his reply, pleaded that the Respondent had left the matrimonial home, on her own, and was living an adulterous life, with one Ganga Lal.

Learned Judicial Magistrate, after recording evidence, adduced by both the sides, concluded that Respondent had been living in adultery and, therefore, she was not entitled to maintenance, u/s 125 Code of Criminal Procedure Learned Sessions Judge has set aside the aforesaid finding of the Magistrate. He has held that Respondent has not been proved to have been living in adultery and that even if it be assumed that once or twice, she had been seen in the company of Ganga Lal, that would not be a case of living in adultery, but a simple instance of misconduct. With the aforesaid finding, order of learned Judicial Magistrate, has been set aside and petition of the Respondent, u/s 125 Code of Criminal Procedure., allowed and maintenance allowance @ Rs. 500/- per month granted to her.

I have heard the learned Counsel for the parties and gone through the record.

Petitioner, herself, appeared as AW-1 and testified that she had been living separate from the Petitioner, because he gave her beatings. She denied the suggestions put to her, that she had been living in adultery. She admitted that a sum of Rs. 40,000/- was lying in deposit in her name, in a post office, but denied that money had been given to her by the Petitioner. She stated that the money had been given to her by her second son Pawan Kumar, who was working as a driver.

Respondent stated that, not only the Petitioner, but her elder son, who lives with the Petitioner, also gives her beatings and hurls abuses at her. She examined two witnesses, namely AW-2 Lekh Ram and AW-3 Shivia, who stated that the Petitioner used to give beatings to the Respondent, when she had been living with him.

Petitioner, in his deposition as RW-2, stated that he saw the Respondent, in the company of one Ganga Lal for the first time, in the year 1994 and when he objected to it, both the Respondent and said Ganga Lal, started threatening him and because of that, he started living in a different village in rented accommodation. His testimony, that he had been living in rented accommodation in a different village, since 1994, was not subjected to cross examination. He further stated that on 17.1.1998, when he went to his ancestral house, accompanied by his elder son Pritam, he saw the Respondent spreading wet clothes of a man, for drying up and that Ganga Lal was also in his house. He stated that when he confronted the Respondent with the presence of another man in the matrimonial home, both the Respondent and said Ganga Lal, started quarreling and Ganga Lal picked up a drat and started assaulting him. Further, he stated that then he went to the Pradhan of the Panchayat and reported the matter to him, and also lodged report, copy Ex. R-1, with the police. Suggestions were put to him, in his cross examination, that he used to give beatings to the Respondent, because of his developing illicit relations with Respondent''s sister Sita Devi, who was married to his elder brother, and that was the reason for the Respondent living separate from him. He denied the suggestions.

Petitioner, when herself in the witness box as AW-1, did not depose on the lines of this suggestion. She did not say that she was beaten up by the Petitioner, on account of his developing illicit relations with Sita Devi, or that because of his having such relations with Sita Devi, she had been living separate.

Statement of Respondent that she is beaten up, even by her own son, when seen in the light of the fact that she has made a false excuse, that she is not living with the Petitioner, or that the Petitioner used to give beatings, on account of his illicit relations with his brother''s wife Sita, lends a great deal of credibility to the testimony of the Petitioner, that the Respondent is living in adultery with one Ganga Lal. If the Petitioner was having illicit relations with another woman, as was suggested to him, in the course of his cross examination, his son would not have sided with him but with his mother, i.e. the Respondent.

A specific suggestion was put to the Respondent, if she was prepared to live with the Petitioner. She stated that she was prepared, if she was provided a separate house. She has already been living in a separate house in Bilaspur town, which fact she does not deny. Petitioner''s allegation is that she is living at Bilaspur, in a rented accommodation, with above said Ganga Lal.

Also, it has come in evidence that Respondent is having a sum of Rs. 40,000/- in fixed deposit in a post office account. She herself has admitted this fact. Though, she stated that the money had been given to her by her younger son Pawan, who was employed as a driver, at the same time, she stated that the money had been initially deposited 7-8 years back, when the amount was Rs. 20,000/-. There is no evidence, if her son was working as a driver, prior to initial deposit of Rs. 20,000/-, or had any other means to give that much of money to the Respondent. In any case, the aforesaid amount is available to the Respondent, for being spent on herself.

In view of the above stated position, revision petition is allowed, impugned order of the learned Sessions Judge, is set aside and that of the trial Magistrate, restored.