Smt. Phulwatia Devi vs Lal Mohar and Another

Arvind K. Tripathi, J.—The present revision has been filed against the order dated 11.7.1994 passed by I Ind Additional Sessions Judge in Criminal Revision No. 302 of 1993, allowing the revision and setting aside the judgment and order passed by I Ind Additional Munsif Magistrate, Ballia in Criminal Case No. 364 of 1991, Phulwatia Devi v. Lal Mohar, Criminal Case No. 364 of 1991granting maintenance of Rs. 150 per month in favour of the applicant Phulwatia and Rs. 100 to each children.

In the present revision the notices were issued on 26.8.1996. As per the office report dated 24.1.2003 the notices issued for service upon the opposite party No. 1 Lal Mohar was received back after service. Thereafter on 27.1.2003 the record was summoned. As per the office report dated 15.9.2008 the record of the revisional court was weeded out. However, the record of the lower court in Criminal Case No. 364 of 1991 has been received and the same is before the Court. Inspite of the service of notice neither any reply has been filed by the opposite party No. 1 nor any one appeared on his behalf.

Heard learned Counsel for the applicant, learned A.G.A. and perused the record.

Learned Counsel for the applicant contended that the learned Magistrate has clearly given finding that there was sufficient reason to live separately as she has stated in her statement that she was being beaten and even there was threatening to administer poison and as such she has rightly refused to live with her husband, opposite party No. 2. He further contended that the revisional court has no power to substitute the finding of the fact recorded by the learned Magistrate. His contention is that the applicant was compelled to leave the house of the husband and she had no sufficient means for her maintenance, hence the application for maintenance u/s 125, Cr. P.C. was allowed by the learned Magistrate but the revisional court has committed error in interfering in the finding of fact. She has constructed a hut separately though on the land belonging to her husband to live separately and whatever was the earning that was not sufficient for her own maintenance and maintenance of two children living alongwith her.

From a perusal of the order of learned Magistrate and the order of the revisional court it is clear that the opposite party No. 2 has stated that the applicant was never tortured and was not living alongwith her parents but she was living alongwith her brother Musafir who was unmarried. His offer was that he was ready to keep his wife and remaining two children to maintain them. Out of four children, two children were already living alongwith him. There are three sons and a daughter. One son and daughter were living alongwith applicant Phulwatia. He has stated in his statement that he tried to persuade his wife and children to leave his brother Musafir and live alongwith him. A panchayat was also held but there was no fruitful result. The applicant examined herself and one Harihar as P.W. 2 who has supported the contention of applicant Phulwatia that she was beaten and forced to leave the house of her husband Lal Mohar. Firstly, she went to her parental house. Thereafter she came back and separately constructed a hut and was living. According to A.P.W. 2 two sons went alongwith his father. However, one son Partma and Tetri were living with their mother Phulwatia.

From the side of the opposite party No. 1 Lal Mohar P.W. 1 examined himself and Virma as P.W. 2 and Jay Prakash, P.W. 3. In the statement Jay Prakash has clearly stated that her mother was living with uncle Musafir and on that ground even he was teased by children of the village, due to which some time he was annoyed. He has clearly stated that his father never beaten her mother and his maternal grandfather and maternal grandmother also tried to persuade his mother. In cross-examination he has supported the version made in examination-in-chief. But he has stated that the father was not giving expenses for maintenance of her mother, brother and sister who were living alongwith his uncle.

So far as the objection and version of the opposite party No. 2 is concerned that she was living alongwith unmarried younger brother Musafir, there is no finding given by the learned Magistrate and if she was living in adultery in view of the Section 125(4), Cr. P.C. she would not be entitled for maintenance.

Learned Counsel for the applicant relied upon the judgment in the case of Smt. Rajmati v. Mithai and Anr. 1999 (2) Crimes 537: 1999 (1) ACR 774 and Laxmi Bai Patel Vs. Shyam Kumar Patel, .In the case of Rajmati it was held by the High Court that the lower revisional court could interfere if there was any illegality in the order of learned Magistrate and there was any material irregularity in proceeding and not otherwise. The revisional court have no power to reassess the evidence and substitute its own finding in place of finding of fact arrived by the learned Magistrate.

In case of Laxmi Bai Patel the Apex Court held in para 6 that the wife''s right to claim maintenance u/s 125, Cr. P.C. can be denied only in the circumstances provided in Section 125(4), Cr. P.C. and further held in that case on the fact and circumstances of the case the aforesaid Sub-section was not attracted.

Section 125(4), Cr. P.C. reads as under:

No wife shall be entitled to receive an interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

So far as the first condition is concerned there was allegation and the statement of her son that she was living alongwith brother-in-law Musafir who was unmarried.

In view of the aforesaid facts and circumstances, even for considering the second condition she refused to live with her husband on the ground that she was beaten and there was threatening and poison might be given to her but her own son in his statement has clearly stated that his father never beaten her mother and she was living alongwith his uncle Musafir regarding which even he was teased by the children of village. Even if it is accepted that there was sufficient reason to refuse to live alongwith her husband. The learned Magistrate was also required to consider and give his finding on first condition whether she was living in adultery or not because if the finding would be in positive she will not be entitled for maintenance u/s 125(4), Cr. P.C. and even according to the judgment of the Apex Court cited by learned Counsel for the applicant the maintenance can be refused in the circumstances mentioned in Section 125(4), Cr. P.C. Even the reason to refuse to live alongwith her husband was not sufficient as the same was not supported by her son. Apart from that since there was no finding whether she was living in adultery or not and further on this ground even the reason to live separately was also doubtful.

So far as the maintenance of the children is concerned they were entitled for the maintenance either they were living alongwith father or alongwith her mother. Till the son started living alongwith their father or till attaining the age of majority and the daughter till her marriage they will be entitled for maintenance from their parents. The lower revisional court committed error in quashing the order of maintenance allowed in favour of children.

In view of the aforesaid fact and circumstances this revision is partly allowed and the order of the lower revisional court is set aside. So far as it relates to the maintenance to the children. The son and daughter living alongwith mother will be entitled for maintenance in compliance of the order dated 20.7.1993, passed by I Ind Additional Munsif Magistrate, Ballia. However, the revision in respect of applicant wife is rejected. No order as to cost.