Smt. Permeshwari Bai vs Siyaram Verma

Pritinker Diwaker, J.—By this petition the applicant calls in question the legality, validity and propriety of the order dated 30.9.2004 passed by the Additional Sessions Judge, Baloda Bazar, District Raipur, in Criminal Revision No. 42/2004 dismissing the revision preferred by her against the order dated 6.11.2003 passed by Judicial Magistrate First Class, Baloda Bazar, in Criminal Case No. 13/2003 whereby the application filed by her u/s 125 of the Code of Criminal Procedure was rejected.

Brief facts of case in hand are that on 15.7.2002, the applicant/wife had filed an application u/s 125 of the Code of Criminal Procedure seeking maintenance of Rs. 3,000 per month from the respondent/husband. In the said application it has been stated that marriage of the applicant was solemnized with the respondent on 17.5.1986 as per the Hindu custom and out of the wedlock she is having a son and two daughters. It is further stated that the applicant was subjected to cruelty by her mother-in-law, father-in-law and brother-in-law but the respondent/husband being under their control never opposed such attitude towards her. It is stated that when her condition deteriorated and the respondent/husband as well as his parents did not pay any heed to her physical state by providing proper food and medical treatment to her, her father took her to the hospital and even while she was taking treatment in the hospital the respondent/husband did not bother to visit her. After recovery from her illness, she again went to the respondent/husband where her mother-in-law and father-in-law categorically refused to keep her and did not even give an entry in her room nor allowed her to meet her children. Though her father had made several efforts to patch up the matter, the respondent and his family members refused to keep her and in these circumstances she was compelled to live separately. Ultimately, a society meeting was arranged on 20.6.1998 in which a decision was taken by the Panchas that the respondent would pay Rs. 500 per month as maintenance to the applicant. It is stated that she had received a sum of Rs. 4,500 only for nine months from the respondent and thereafter no payment whatsoever was made by him. It is stated that respondent has performed second marriage on 11.9.2002 with one Radha Bai and in these circumstances it was literally impossible for her to go and live with him. It is stated that the respondent is working as a typist in Krishi Upaj Mandi, Nevra and at the relevant time his monthly income was Rs. 5,000 and this apart he is having 15 acres of agricultural land out of which he is having sufficient income.

Reply was filed by the respondent/husband denying the allegation of cruelty to the applicant. It is stated in the reply that the applicant is living separately at her own without there being any justification for the same. Factum of income as alleged by the applicant has also been denied by the respondent/husband. It is stated that in the year 1997 on the eve of Hareli festival, the applicant was red-handedly caught by her father-in-law having sex with the domestic servant namely Malikram and therefore she being an adulterous woman is not entitled for maintenance.

In support of her case, applicant has examined herself as (AW-1), Umakant (AW-2) - head of Verma society, Govind Prasad Verma (AW-3), Sewakram Verma (AW-4) whereas respondent/husband has examined himself as (NAW-1), Gopeshwar Prasad (NAW-2), Janakram (NAW-3) and Malikram Verma (NAW-4). Vide judgment dated 6.11.2003 learned Magistrate rejected the application of the applicant filed u/s 125 of the Code of Criminal Procedure mainly on the ground that she is living separately without there being any justification for the same and that as she was living in adultery, she is not entitled for maintenance. The revision preferred by her against the judgment of the Magistrate also came to be dismissed by the judgment impugned.

Counsel for the applicant submits that the finding recorded by the two courts below that the applicant is living in adultery is perverse for the reason that no such evidence substantiating the same has been led by the respondent/husband. He submits even assuming for the sake of argument that she was caught red-handedly by her father-in-law in compromising position with the domestic servant, it cannot be said that she was living in adultery. According to him "living in adultery" means continuous course of adulterous conduct and stray instances are not sufficient to invoke said bar for granting maintenance. He submits that in the present case the statement of said domestic servant namely Malik Ram with whom the applicant was allegedly living in adultery who has been examined as (NAW-4) clearly shows that the applicant was caught red handed being in a compromising position with him but that one stray instance alone does not mean that she was living in adultery. He submits that as the respondent has performed second marriage on 11.9.2002, it is now literally impossible for her to go and live with him and therefore looking to the financial status of the respondent and considering the fact that the applicant is not in a position to maintain herself, she is entitled for maintenance.

From the record it appears that even before the revisional Court the respondent has not bothered to contest the case and therefore he was proceeded ex parte. Here also, despite issuance of notice the respondent remains unrepresented and hence this Court has no other option but to proceed even in his absence.

From the application filed by the applicant u/s 125 of the Code of Criminal Procedure and the evidence led by her in support of her case, it is apparent that her marriage was solemnized with the respondent on 17.5.1986 and out of their wedlock she is having three children. Record further reveals that it has been admitted even by the respondent that he has performed second marriage with one Radha Bai. It is also not disputed by the respondent that he is working as a typist in Krishi Upaj Mandi, Nevra and thus it can safely be presumed that the minimum monthly income of the respondent must be around Rs. 10,000.

On the basis of statement of Malik Ram (NAW-4) the Court below has given a finding that the applicant is living in adultery. Statement of Malik Ram (NAW-4) shows that on the eve of Hareli festival when he had gone to collect hey to the court yard, the applicant came to him, caught hold of his hand and asked him to do bad work and even after his refusal, she had forced him to do so. Meanwhile, according to this witness, father-in-law of the applicant reached there and asked her that she was not suitable for his family and asked him to take her with him. The record shows that though the applicant had given his consent to accompany this witness, she never lived with him. This witness has stated that a Panchayat meeting was called in which he and the applicant both were punished. This witness has nowhere stated in his evidence that there was any physical relationship between him and the applicant or did she ever live with him. Merely on the basis of the statement of this witness, it cannot be said that the applicant was living in adultery. Moreover, "living in adultery" means continuous course of adulterous conduct and stray instances are not sufficient to invoke said bar for granting maintenance u/s 125 of the Code of Criminal Procedure.

Having come across the aforesaid factual background of the case and the evidence led by the parties, this Court is of the considered opinion that the findings recorded by both the courts below are perverse and cannot be accepted in the eye of law. Evidence available on record clearly shows that the applicant was subjected to cruelty and for this reason she had chosen to live separately. Moreover, the allegation pertaining to character of the applicant appears to have been made by the respondent/husband just to deprive her of claiming any maintenance from him. Except the evidence of the respondent and Malik Ram (NAW-4), nothing has been brought on record to establish the factum of applicant''s living in adultery. Such bald allegations of un-chastity made against the applicant alone are sufficient to be termed as cruelty. This apart, it also remains admitted that the respondent has entered into the second marriage with one Radha Bai and therefore it is not possible for the applicant to go and live with him. In this view of the matter, this Court reaches the conclusion that the applicant is very much entitled for receiving maintenance from the respondent.

To quantify the maintenance, present day cost of living has to be the foremost consideration. Keeping this in mind, the respondent/husband is directed to pay monthly maintenance of Rs. 1,500 to the applicant apart from a sum of Rs. 5,000 towards the litigation expenses. Order accordingly.

Petition is thus allowed.