Kulwant Singh Bhullar vs Sukhwant Kaur

K.K. Srivastava, J.

This is a petition filed by Kulwant Singh Bhullar, husband of Smt. Sukhwant Kaur/respondent No. 1 under Section 482 Cr.P.C., seeking the quashing of order dated 3.8.1995 passed by the Additional Chief Judicial Magistrate, Kapurthala, copy Annexure P1 and order dated 8.10.1997 passed by the Additional Sessions Judge, Kapurthala, copy Annexure P2.

The petitioner was married with respondent No. 1 on 21.11.1987. Two sons, namely Baljinder Singh and Sukhjinder Singh, were born to the petitioner and respondent No. 1 out of the wedlock, who have been arrayed as respondents No. 2 and 3 under the guardianship of their mother Smt. Sukhwant Kaur/respondent No. 1. Some differences arose between the petitioner and respondent No. 1 in February, 1993. Respondent No. 1 had gone to her parents'' house as her brother became a victim of a snake bite. The petitioner also followed her. At the house of petitioner''s parentsinlaw, some exchange of hot words took place and the petitioner returned to his home, where he narrated the whole incident to his parents. In March, 1993, engagement of the brother of respondent No. 1 was to take place. Respondent No. 1 went to the house of her parents and took with her the golden bangles weighing about two tolas from the brother''s wife and also took a cash amount of Rs. 2,000/ from his mother. It is alleged that respondent No. 1/wife left the house of the petitioner in his absence. The petitioner asked his wife/respondent No. 1 to accompany him to her matrimonial house, but she did not agree. The petitioner, however, took with him his son Baljinder Singh. Respondent No. 1 had assured the petitioner that she would return after about a month''s time, but she did not keep the promise and stayed back at her parents'' house. The petitioner accompanied by his parents and respectables of the village panchayat went to the house of respondent No. 1. But respondent No. 1 refused to accompany the petitioner.

It is alleged that after some time respondent No. 1 filed a petition under Section 125 Cr.P.C. and sought maintenance for herself as well as for her minor children. The contention of the petitioner is that the averments made in the application moved under Section 125 Cr.P.C. were false and frivolous. Respondent No. 1 had alleged, inter alia, that there was demand of dowry of a scooter and cash amount of Rs. 25,000/ from the side of the petitioner and his parents, which could not be fulfilled and she was maltreated. They are also alleged to have made a further demand of Rs. 40,000/. The parents of the respondent No. 1 somehow paid a sum of Rs. 20,000/ on four occasions after some intervals, but this did not satisfy the demand of the petitioner and his parents. These allegations were categorically denied by the petitioner.

The contention of the petitioner is that the learned Additional Chief Judicial Magistrate committed grave error in making comments upon the conduct of the petitioner and proceeded to grant maintenance to the respondents despite recording a finding that the respondent No. 1/wife could not prove the demand of dowry. It has been contended that the findings recorded by the learned Magistrate are conjectural and not based on evidence on record. The petitioner/husband filed a revision before the Court of Sessions Judge, Kapurthala, which was made over to the Additional Sessions Judge, for disposal. It has been contended that the Additional Sessions Judge did not consider the points which were raised regarding merits of the case and mentioned in the grounds of revision and that he confined his discussion only to the quantum of maintenance. The learned Additional Sessions Judge did not consider merits of the claim of the respondentwife. There is no mention in the impugned order (copy annexure P2) that the counsel for the respondents had anywhere made a statement about his not pressing the revision on merits and that he pressed the revision only on the quantum of maintenance. The petitioner contended that in fact it is the petitioner, who is victim of the situation as the respondent No. 1/wife had herself deserted the petitioner and had treated him with cruelty and for no valid reasons the petitioner has been deprived of her society.

Notice was issued to the respondents, who filed reply. In the preliminary objections, a plea was taken that the order of the Additional Chief Judicial Magistrate was agitated by the petitioner/husband by filing a revision petition before the Sessions Judge. It was contended that since the petitioner/husband had already availed the remedy of revision before the Sessions Judge, he could not file this petition under Section 482 Cr.P.C. as the same is subsequentialy a second revision, which is clearly and categorically barred under the provisions of Section 397(3) Cr.P.C. It was further mentioned that the petitioner/husband is under moral and legal obligation to maintain his wife and is bound to maintain his minor children. The amount of maintenance granted by the courts below cannot be said to be a big amount and on the contrary the amount of Rs. 400/ per month is hardly sufficient to make both ends meet. On merits, it was contended that the petitioner had averred wrong facts in the petition. No details of the visit of the panchayat comprising of the respectables of the village to the house of the parents of respondent No. 1/wife were given. The petitioner had indirectly mentioned in the petition that the demand of dowry and scooter was made by his parents only and that the petitioner was unaware of the demands made by his parents. It has been contended that this clearly indicates that there was a demand of dowry from the side of the petitioner as also from his parents and the same lends support to the plea of respondent No. 1 raised in the petition filed under Section 125 Cr.P.C. It was further contended that apart from it, the courts below have considered the matter and as such this Court should not invoke its inherent powers to reconsider and reassess the material on record. It was also contended that the petitioner was earning sufficient amount to provide maintenance to the respondents.

I have heard learned counsel for the petitioner, learned counsel for the respondents and have carefully perused the impugned orders passed by the courts below.

The petitioner contested the application of respondents filed under Section 125 Cr.P.C. He also led evidence before the Court of Additional Chief Judicial Magistrate, dealing with the application for maintenance. The learned Additional Chief Judicial Magistrate considered the evidence led by the respondents, who were applicants before him and the petitioner, who was a respondent in the maintenance case and after considering the evidence on record, he found that the petitioner/husband had deserted the respondents inasmuch as he neglected to provide for their maintenance. He also held that the respondents were entitled to be maintained by the petitioner, who was morally and legally bound to maintain them. He also held that the petitioner/husband was an ablebodied person and was earning sufficiently to maintain the respondents. The only para in which he held discussion regarding the case is para 7, which reads as under :

"The next aspect to be seen is as to whether petitioner No. 1 is unable to maintain herself. On this aspect, there is statement of petitioner Sukhwant Kaur to the effect that she is illiterate and she has no means to earn her livelihood. Her statement has been corroborated by her father, AW2 Surjit Singh, who has deposed that her daughter is educated only upto 4/5 class. Though the respondent has come with the plea that petitioner No. 1 knows sewing and earns Rs. 600/700 per month and has led evidence in this respect but he has not brought on record any evidence to show that petitioner No. 1 has taken any regular training of sewing from any recognized institution or to show that she ever earned any amount by way of sewing the clothes of any person. In the absence of such evidence, the petitioner being illiterate is not supposed to go from door to door to earn her livelihood and thus I hold that the petitioner is unable to maintain herself."

It will appear from perusal of the judgment of learned Additional Sessions Judge, Kapurthala, that he did not address himself to the merits of the case, which were raised before him, though he noticed the contention of the petitioner/husband in para 4 of his judgment, which reads as under :

"Husband had contested the main petition and taken up the plea that he had never deserted the respondentpetitioner. Rather the respondentpetitioner had deserted him and had taken away the golden ornaments. The husband had denied the other allegations of demand of more dowry items or torture and taken up the plea that the wife was earning Rs. 700/ per month from stitching work and as such he prayed that the maintenance petition be dismissed."

Once a revision was taken against the order of the Additional Chief Judicial Magistrate and the petitioner/husband contended before the Sessions Judge on merits of the claim of the respondent/wife, the Additional Sessions Judge was required to consider the material on record and to appraise the findings recorded by the learned trial Magistrate while granting maintenance to the respondent/wife. It may, however, be mentioned that so far as respondents No. 2 and 3 are concerned, they are minor sons of the petitioner, who is morally and illegally (legally ?) bound to maintain them and as such the order granting maintenance to respondents No. 2 and 3, the minor children, cannot be said to be contrary to the provisions of law.

Learned counsel for the petitioner referred to certain parts of the judgment of learned Additional Chief Judicial Magistrate to show that the findings recorded by him were based on conjectures and surmises and not on material brought on record. He referred to the following findings recorded in para 6 of the judgment :

"............... It is not believable that after giving birth to two children, the petitioner would leave the house of the respondent without any maltreatment on the part of the respondent. Though the petitioner has also failed to establish positively that her parents paid Rs. 20,000/ to the respondent on different occasions but the attitude of the respondent during the trial of the case goes to show that he does not have bona fide intention qua the petitioner ...................

"............. The conduct of the respondent after the filing of the present petition is also reprehensible. The Court had granted interim maintenance of Rs. 100/ per month to petitioner No. 1 and Rs. 50/ each for petitioner Nos. 2 and 3 and the respondent went in appeal even against the grant of such meagre amount of maintenance allowance during the trial of the case. This conduct of the respondent clearly leads to the conclusion that the respondent has neglected and refused to maintain petitioner No. 1."

It will appear from the above discussion made by the learned Additional Chief Judicial Magistrate that his findings were based on conjectures and surmises. It will appear from perusal of the judgment of learned Additional Sessions Judge, in Criminal Revision No. 53 of 16.9.1995 filed against the order of the Additional Chief Judicial Magistrate, that the petitioner had raised his pleas on merits of the case and the petitioner had inter alia contended that he never deserted the respondent/wife and rather the respondent had deserted him and she had taken away the gold ornaments. The petitioner/husband had also denied the other allegations of the demand of more dowry items and about the respondent/wife being tortured or harassed. He had also taken a plea that the respondent/wife was earning Rs. 1,000/ per month from stitching etc. These pleas have been noticed in para 4 of the judgment of learned Additional Sessions Judge, which has already been reproduced earlier. Paras 5 and 6 of the judgment of learned Additional Sessions Judge referred to the maintenance having been granted by the learned Additional Chief Judicial Magistrate and the petitioner contending that there was no documentary evidence regarding the pay of the petitioner and further that the income of the petitioner/husband was hardly Rs. 25000/30000/ per month. As stated earlier, the only discussion which the learned Additional Sessions Judge made in his judgment is contained in para 7, which has already been reproduced earlier. In para 7 of the judgment, there is no discussion regarding justification of the respondentwife to live separately from the petitioner/husband. In other words, it was not considered as to whether the reasons for the respondent/wife living separately from her husband were sufficient or not. There is no discussion in the judgment of learned Additional Sessions Judge about the income of the petitioner/husband and further regarding the income of the respondent/wife from the stitching work, as alleged by the petitioner/husband.

Section 125(1) the Code of Criminal Procedure which provides for order of maintenance of wives, children and parents, reads as under :

"JUDGMENT of maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or 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 or such child, father or mother, at such monthly rate not exceeding five hundred rupees 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 :

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means."

The wife in order to claim maintenance from her husband has to prove that her husband, having sufficient means, has neglected or refused to maintain her and further that she was unable to maintain herself. The ingredients of Section 125(1) Cr.P.C., which the wife has to prove is the neglect or refusal on the part of the husband to maintain her and further that she is unable to maintain herself. In the instant case, there is dispute regarding the fact the petitioner/husband has neglected or refused to maintain the respondent/wife. There is also dispute regarding the fact that the respondent/wife is unable to maintain herself. Till the respondent/wife proves these ingredients against the husband and shows that she has legal and justifiable reasons for living separately from her husband and that she is unable to maintain herself, the petitioner/husband would be required to pay maintenance to her till the reasons for separate living disappear and the husband is willing to keep his wife with him. The ingredients of Section 125(1) Cr.P.C. are dependent upon proof of the allegations contained in the petition. Learned counsel for the petitioner has shown from the judgment of learned Additional Chief Judicial Magistrate that he recorded the findings in the case on the basis of conjectures and surmises and the learned Additional Sessions Judge has failed to enter the merits of the case. In these circumstances, it has to be considered as to whether this Court is barred from examining the matter and considering the validity and legality of the impugned orders. Undoubtedly, Section 397(3) Cr.P.C. bars a second revision filed by the same person, who has already availed the remedy of a revision before the Sessions Judge. There is also no dispute about the fact that the bar of Section 397(3) Cr.P.C. cannot be overcome merely by filing an application under Section 482 Cr.P.C., if in substance and reality the intention of the party is to file a second revision. In case the learned Additional Sessions Judge while dealing with the revision has not decided the revision according to law, then this Court can certainly intervene under its inherent powers under Section 482 Cr.P.C. In the instant case, the learned Additional Sessions Judge has not at all properly dealt with the pleas raised by the petitioner and has confined himself only to the quantum of maintenance without touching the merits of the case.

In view of the foregoing discussion, I am of the considered view that the impugned order passed by the learned Additional Sessions Judge suffers from grave illegality and deserves to be set aside and the revision deserves to be remanded to the learned Sessions Judge.

Resultantly, this petition is allowed to the extent that the order passed by the learned Additional Sessions Judge (copy Annexure P2) is set aside and the case (Criminal Revision No. 53 of 16.9.1995) is remanded to the Court of learned Sessions Judge, Kapurthala, with a direction to decide the same afresh in the light of the observations made in this order and in accordance with law.

Parties are directed to appear before the learned Sessions Judge, Kapurthala on 21st January, 1999.