Netra Pal Singh vs Smt. Yashoda Devi

C.A. Rahim, J.—This revision is directed against the judgment and order of Sessions Judge, Pauri Garhwal dated 19.12.83 in Criminal Revision No. 30 of 1983. By that judgment he allowed the revision filed by Smt. Yashoda Devi, set aside the judgment and order of the trial court and directed Respondent Netra Pal Singh Bist to pay Rs. 250 per month towards maintenance allowance to his wife.

A petition u/s 125, Code of Criminal Procedure was filed before the Chief Judicial Magistrate, Pauri Garhwal by Smt. Yashoda Devi against her husband Netra Pal Singh Bist on the allegation that she was driven out of her matrimonial home after torture but did not pay any maintenance. Since then she tried to restore the conjugal right by sending her relatives for negotiation but it failed. It is alleged that her husband was having an income of Rs. 1,600 per month. He has married for second time so she claimed maintenance allowance at the rate of Rs. 500 per month.

The said application was contested by opposite party stating inter alia that he was agreeable to accept the Petitioner (wife) but she left his house without any reason. It is denied that he married for the second time or that he made any torture on the Petitioner nor he had driven her out of the house.

The learned Magistrate after considering the materials on record, dismissed the application with the findings that the opposite party was eager to build the matrimonial home with the Petitioner and that allegation of second marriage was not proved. It is stated that the Petitioner could not prove her allegation that the opposite party ever denied to offer subsistence to the Petitioner.

A revision was preferred by Smt. Yashoda Devi before the District Judge, Pauri Garhwal who held that the Petitioner was able to prove that she was unable to maintain herself or that she was not maintained by her husband since May, 1979. It is also held that the Petitioner was turned out by the Respondent who was earning Rs. 2,030 per month as salary. The learned Sessions Judge allowed the revision and granted maintenance to Smt. Yashoda Devi at the rate of Rs. 250 per month after setting aside the judgment and order of Chief Judicial Magistrate, Pauri Garhwal.

Sri S. K. Agrawal learned Counsel appearing along with Sri Sikandar Raza, Advocate has submitted that the learned lower revisional court reassessed the evidence and allowed the revision by substituting his own findings which is not permissible under the law.

After going through the entire matter, it appears that the learned trial court did not dispose of the point raised by the Petitioner Smt. Yashoda Devi whether she was turned out of the house after torture. Both the Courts below have unanimously held that the Petitioner was unable to prove the second marriage of her husband. The learned trial court has raised the point but did not decide whether the Respondent (before him) was having sufficient means to maintain his wife but the said point is not required to be adjudicated since it is an established position of law that each and every able bodied married person must maintain his wife. The learned Magistrate held that the Respondent/husband was eager to live with the Petitioner and hence she was not entitled to any maintenance. The said defence appears to be stereotyped one which was not scrutinised properly by the learned trial Magistrate. Nothing has been brought on record that prior to initiation of the proceedings, any attempt was made by the Respondent/husband to express such desire to live with the Petitioner by any means of communication or by filing a suit for restoration of conjugal right, in the absence of which a defence taken by the husband cannot be regarded to be a material point to pass an order in his favour. Learned Counsel has submitted that the case of bigamy was filed by the Petitioner against the Respondent/husband but the said case was dismissed. It is a relevant fact in considering the relationship in between the couple. Taking the entire matter into consideration, I do not consider that the Respondent/husband was able to prove that he was eager to live with the Petitioner even prior to the initiation of the proceedings. There is absolutely no evidence on that point and this Court can take notice of it and hold that the decision of the trial court in that respect is perverse.

Since the trial court was to adjudicate whether the Petitioner had sufficient reason to withdraw herself from the association of Respondent/husband and whether the allegation that she was driven out after (sic) torture, the matter should be sent on remand for decision on these points. It is true that the lower revisional court reassessed the evidence and substituted its own findings which is not permissible under the law.

The revision is, therefore, allowed. The judgment and order of learned Sessions Judge. Pauri Garhwal dated 19.12.83 is hereby set aside. The matter is sent back on remand to the Court of C. J. M., Pauri to decide the point raised in the body of the judgment and to proceed according to law.