Rajaram Govind Babre vs Shantabai Rajaram Babre

M.S. Ratnaparkhi, J.—Inherent powers of this Court are sought to be invoked for quashing the maintenance order in favour of the wife, passed by the Judicial Magistrate, First Class, Nagpur, in Misc. Criminal Case No. 18/85 and duly confirmed by the Sessions Judge, Nagpur, in Criminal Revision No. 730/86 on 30-11-1988.

It is no longer disputed at this stage that the present applicant and the present non-applicant were married together long back and the marital ties till continued. It was the case of the present non-applicant before the Judicial Magistrate First Class, Nagpur that in or about 1977 she was deserted and driven out of the house of her husband-the present applicant. It was her contention that she is unable to maintain herself. That her husband has sufficient means to maintain her. It was also contended by her that she was neglected and/or, refused to be maintained. She, therefore, filed an application for maintenance u/s 125 Criminal Procedure Code, claiming the maintenance of Rs. 300/- per month.

The claim was opposed by the husband vide his reply Exhibit 14. The allegations of cruelty, neglect and refusal to maintain are denied. It was his case that the wife of her own volition, deserted the husband, leaving 5 minor children. The wife had illicit relationship with one Murlidhar. Since then i.e. since the year 1977 she has not cared for the family and she is leading the life of adultery. It was also contended by him that he had purchased one house in the name of his wife and that house is in occupation of his wife even today. On these counts the claim was opposed.

The learned Magistrate on trial found that the husband deserted the wife and refused to maintain her. He also found that the wife has no source of income and she was unable to maintain herself. The learned Magistrate also found that the husband has sufficient means to pay the maintenance. On these findings, he directed the husband to pay Rs. 300/-to the wife by way of maintenance.

This order came to be challenged in revision before the Sessions Court. The Sessions Court found that the non-applicant has married a second woman and he is living with that second woman, and therefore, the wife was entitled to maintenance. He therefore rejected the revision. This order has been challenged in this application. ,

Mr. De, the learned advocate for the husband petitioner has strongly contended before me that his defence that the wife is living in adultery has not at all been considered by the courts below. I was taken through the respective pleadings. As a matter of fact, there is no specific pleading of adultery at all. What the husband has stated in his defence is that, in 1977, the wife ran away with one Murlidhar and since then she is living in adultery with him. This would have been a very cogent defence to the claim of maintenance. However, when the husband entered into the witness box, he stated nothing about the adultery. On the other hand, what appears from his evidence is that, he does not know anything about the so called adultery except the fact that the wife ran away with one Murlidhar in 1977. He is not even able to tell whether she was ever staying with Murlidhar. Merely running away with a man does not constitute adultery within the meaning of the term. Mr. De wanted me to rely on the evidence of Aruna (NAW 2) She is a daughter of the applicant as well as the non-applicant and she was about 17 years old when she entered into the witness box Her evidence was to the effect that Murlidhar used to visit the house in between 12 noon and 5 P.M. when her father was not at the house. The cross-examination of the witness was more revealing when she said that in between this period, she used to attend the school. It means that she was never at the house. It is in her absence that Murlidhar used to come and meet the wife. This evidence commands hardly and credibility, because the witness has no personal knowledge. It is on this vague evidence that Mr. De wants the Court to record a finding that the wife is living in adultery. In fact the plea itself was so weak and the evidence still weaker that the courts below did not think it proper even to waste their time in scrutinising this plea. The record standing as it is, and the evidence standing as it is, there is hardly any substance in the defence that the wife was living in adultery, and therefore, the Court ought not to have granted the maintenance. In fact the plea of adultery deserves to be rejected straightway, because the evidence that has been led by the husband and the daughter does not command any credibility.

It was next urged by Mr. De that in any case, the wife had left the shelter of her husband right since 1977 to 1984 and during this period she never cared either for the husband or for the minor child. It is not proper for this Court to go into the factual aspect, because there has been a positive finding by the Trial Court that it was the husband who deserted the wife in 1977. But even assuming what Mr. De says is correct, it cannot, be an impediment in the way of maintenance which is permissible u/s 125 of Criminal Procedure Code. The obligation to maintain the wife flows from the factum of marriage and as long the marriage survives, the obligation continues. The obligation can be resisted only for the defences available under the Explanations and provisos to Section 125 and not otherwise. Mr. De invited my attention to Sub-section 4 of Section 125 of Criminal Procedure Code and he urged before me that during the period commencing from 1977 and ending with 1984, the wife was residing separately without any sufficient cause. What Sub-section (4) of Section 125 of Code of Criminal Procedure contemplates is the position prevailing on the day when the Magistrate is called upon to adjudicate. On the day the application was filed and on the day the Magistrate was called upon to decide this application, the admitted position which was prevailing was that the husband had kept a mistress and he had one daughter from the mistress. According to the Explanation to the proviso, this is a just ground for the wife to refuse to live with her husband. Thus, when the Magistrate was called upon to adjudicate, the position was that the wife was living separate from the husband and she had a justification for residing separately from the husband. The claim could not, therefore, be negatived on that count. Mr. De urged before, me that for all the 7 years preceding the filing of this application, the wife was residing separately without any justifiable cause. Her separate stay during that period may be unjustifiable but she has not come before the Magistrate with a claim of maintenance for that period when her separate stay was unjustified. She has come before the Court to claim maintenance for the period when her separate residence was justified, because of the husband''s keeping a mistress.

In these circumstances, the Courts below were quite justified in recording a finding that the wife was entitled to claim maintenance.

Mr. De, however, urged before me that the applicant is earning Rs. 1000/- per month and he has to maintain the family consisting of himself, his five children from the non-applicant, the mistress and her daughter in all 8 persons. In these circumstances, allowing the maintenance at Rs. 300/- per month would be beyond his means and the other members of his family will have to face starvation. There appears to be some justification in this argument. In these circumstances, I think that the maintenance of Rs. 200/- per month would be justified, particularly taking into consideration the obligations of the husband.

The order of the Trial Court is, therefore, modified by substituting the figure of Rs. 200/- for the figure of Rs. 300/-. The amount paid in excess shall be adjusted towards the future maintenance. Subject to this modification, the application is dismissed. Rule discharged.