Meiyazagan vs Bhanam Mery

Padmini Jesudurai, J.—The husband of the Respondent, aggrieved with the order of the learned Sessions Judge, Nilgiris at

Uthagamandalam, directing him to pay monthly maintenance of Rs. 100/- to the Respondent reversing the order of the Judicial First Class

Magistrate, Coonoor dismissing the Respondent''s application u/s 125 Code of Criminal Procedure, has filed the present revision.

The Respondent files M.C. No. 13 of 1983 in the Court of the Judicial First Class Magistrate, Coonoor, u/s 125 Code of Criminal Procedure

on the averments that she had been married to the Petitioner on 9.12.1976 and some lime after the marriage the Petitioner developed illicit intimacy

with one Vennila, daughter of Kiltan of Thalaiyanallur and started living with her giving out that Vennila was the wife of his brother and that due to

the above reason he prosecuted the Respondent who tried for mediation through panchayatdars and finally was driven out of the marital home to

take shelter with her aged parents. She had no means to maintain herself while the Petitioner is a Police Constable drawing a salary of more than

Rs. 300/- per mensum. Monthly maintenance of Rs. 150/- was Sought for.

The Petitioner resisted the claim admitting the marriage but contending that within three months after the marriage misunderstandings arose and

that the Respondent refused to live with him. He denied that any panchayat had mediated and contended that he had always been willing to take

her back and it was the Respondent who deserted him and finally drove him to file a divorce petition in O.P. No. 18 of 1982 which had been

ordered ex parte. He also contended that the Respondent was employed as a cooly in the estate earning a daily wage of Rs. 15/- and her monthly

income of Rs. 400/- was more than the salary he was drawing as a police constable.

Before the learned Magistrate, the Respondent examined herself as P.W.1 and has the Panchayat proceedings marked as Ex.P1. The Petitioner

examined himself as R.W.1, and examined R.W.2 to corroborate him regarding the desertion by the Respondent and had Exs.B1 to B3 marked

on his side.

The learned Magistrate holding that it was the Respondent who had deserted the Petitioner and there was no sufficient cause for the Respondent

to live separately from the Petitioner, dismissed the application which resulted in the Respondent filing C.R.P. No. 7 of 1984 before the learned

Sessions Judge, Nilgiris at Uthagamandalam. The learned Sessions Judge reversed the order passed by the learned Magistrate and the aggrieved

Petitioner has filed the present revision.

Mr. P. Selvaraj, learned Counsel for the Petitioner would strongly contend that the well-considered order of the learned Magistrate ought not to

have been reversed by the learned Sessions Judge, and the order obtained in O.P. No. 18 of 1982 was proof enough of the fact that the

Respondent had deserted the Petitioner and this was corroborated by the evidences of P.W.2. and the order of the learned Magistrate therefore

ought to be upheld. He relied upon the decision of the Calcutta High Court in Ranjit Kumar Pandey v. S.M. Swaha Pandey 1979 Crl. L.J. 1301.

Per contra, Mr. G. Sugumaran, learned Counsel for the Respondent contended that Ex.P1 clearly showed that the panchayat had mediated on

several occasions and the Petitioner was never prepared to abide by the decision of the panchayat and Ex.P1 also corroborated the evidence of

P.W.1, that the Petitioner was living with one Vennila showing her to be his brother''s wife and that under these circumstances the learned Sessions

Judge had rightly reversed the order of the learned Magistrate passed upon a perverse appreciation of the evidence in the case. The learned

Counsel further emphasised the fact that if the Petitioner had really been earnest about living with the Respondent he would have filed an O.P. not

for divorce but for restitution of conjugal rights. The very fact that he chose the remedy of divorce showed that his object was to legalise; his living

with the above Vennila.

The powers of this Court sitting in revision is rather restricted and will not extend to a detailed or a minute re-appreciation of the evidence in the

case. The power extends merely to finding out whether there is any illegality or error apparent or perversity in the appropriation of evidence. In the

present case the Petitioner admits the marriage with the Respondent, but pleads desertion by the wife. No doubt, P.W.1 has not corroborated by

any other oral evidence. Yet, Ex.P1 which is the record of the Panchayat held in the village and which has been spoken to by P.W.1, is to the

effect that panchayatdars intervened and advised the Petitioner to take back the Respondent and start living with her and contrary to their advice

he had refused to do the same and instead he had brought about a registered marriage making it appear that Vennila was married to his brother

Gunasekaran. The Panchayat finally concludes that due to this conduct of the Petitioner, the Respondent had been cruelly treated and neglected by

the Petitioner. It is in this background that we have to assess the object behind instituting the divorce proceedings.

As rightly contended by the learned Counsel for the Respondent, if the Petitioner was really particular about living with the Respondent and if

the latter alone had been deserting the Petitioner, the normal remedy that the Petitioner would have sought divorce. The very fact that no oral

evidence has been offered by the Respondent to corroborate her averments could not be a ground for rejecting her testimony when we keep in

mind the fact that the Petitioner is a police constable and independent witnesses would be reluctant to offer evidence against him. In fact before the

learned Sessions Judge the only point that had been urged was whether a divorced wife was entitled to maintenance. This was not a point that had

to be canvassed since Section 125 Code of Criminal Procedure itself makes it clear that until remarriage a divorced wife would be entitled to

maintenance. No other point had been urged before the Learned Sessions Judge.

Learned Counsel for the Petitioner relied upon a decision of a Division Bench of the Calcutta High Court in Ranjit Kumar Pandey Vs. Sm.

Swaha Rani Pandey, and contended that when the desertion has been proved in a civil court, the criminal court u/s 125 Code of Criminal

Procedure, is bound to accept that finding of facts and pass suitable orders. I am afraid this decision does not lay down that position of law, the

facts therein were that the husband obtained an ex parte decree in a civil court u/s 13 of the Hindu Marriage Act, dissolving the marriage on the

ground of desertion by wife. On this decision the husband subsequently moved an application u/s 127(2) Code of Criminal Procedure for

cancellation of the maintenance order, on the ground that a competent civil court had rendered a finding that the wife had deserted the husband and

the said finding was binding on the criminal court. Division Bench however repelled this contention on the ground that even u/s 127 Code of

Criminal Procedure, it is only the decision of the civil court that is binding on the criminal court and nor the reasons that persuaded the civil court to

render that decision. It was observed that the question of controversy that arise in the divorce suit was whether the marriage between the parties

should be dissolved and the decision was in favour of the husband. The reason or the ground which persuaded or prompted the learned Judge to

come to the said decision was the desertion by the wife. The ground of desertion therefore was not a decision itself but reasons for such decision.

The Bench also observed that even u/s 31 of the Evidence Act, the ground or reasons for which the wife has been divested of her legal status as

wife will not be conclusive proof but only the fact that she has been so divested.

Finally, the Bench concluded that desertion had to be independently proved u/s 127 (2) Code of Criminal Procedure. The above decision,

therefore does not support the learned Counsel for the Petitioner.

Under these circumstances, being unable to find any illegality or perversity in the order of learned Sessions Judge reversing the order of the

learned Magistrate, this Court has no option but to dismiss this revision.

In the result, this revision is dismissed.