Smt. Pramila Dei alias Kuni vs Sanatana Jena

L. Rath, J.—This revision is directed against an order refusing to grant maintenance to the Petitioner-wife u/s 125, Code of Criminal Procedure on the ground that she had failed to prove to have been neglected and refused to be maintained by the opposite party-husband for allegedly not having been paid the cash, dowry of Rs. 2000/- by her father.

The Petitioner moved the court for maintenance with the facts that her marriage with opposite party bad taken place according to Hindu rites and custom on 8-2-1981 after which she lived in his house for one and half years. Thereafter the opposite party took to drinks and fell in the Company of women of ill repute and started demanding Rs. 2000/- which her parents were alleged to have promised to pay at the time of her marriage. She was subjected to harassment and was tortured physically and mentally as also assaulted, deprived of her regular food, was again assaulted on the night of 4-7-1982 and on the next day i. e" 5-7-1982 was left by the opposite party at her parents place. On 21-7-1983 an attempt was'' made by some gentlemen of the locality to take the Petitioner to the house of the opposite party but however she was not allowed to enter inside the house. In his written statement the opposite party denied all the allegations of torture assault and harassment to the Petitioner as also the demand of dowry and further alleged that the Petitioner had been living in adultery, and that after some months of marriage she had developed illicit relationship with a co-villager which was objected to by his mother who scolded her as a result of which she on her own accord left for her father''s place. On 21-1-1983 she went accompanied by a stranger to the house of the opposite party but he did not like to live with her because of her living in adultery. The Petitioner also did not, "like to go back to her patent''s place but stayed in another person''s house till 10.8.1983. Evidence has been led by both the sides but the learned Sub-divisional Judicial Magistrate found the admitted facts of the case to be that the Petitioner had married opposite party on 8.2-1981 and had led in happy conjugal life for one and half years and thereafter strained relationship between them had developed; that she was abused subsequently by the opposite party and his mother on several occasions and ultimately she was deserted by the opposite party; that there was an attempt by the gentlemen of the locality on 21.8-1983 to reconcile the differences between them but she was not accepted by the opposite party on, that, date for which she had been staying in the house of her parents till the date of her application., 3., As regards the allegation of torture the learned Magistrate came to the conclusion as follows:

On analysis of the evidence discussed above, it is held that though the O.P. has not strictly proved the fact of adultery, but the Petitioner has also not been able to prove that she has been neglected or refused to be maintained by her husband on the ground that bar father has not paid the cash dowry of Rs. 2000/ Simply crying before the court without any justifiable reason cannot invite the impression that she has been neglected or refused to be maintained by the O. P.

Such reason assigned by the learned Magistrate to refuse maintenance to the wife is unacceptable and untenable. It has been settled by a series of authorities that if an allegation of unchastity is made against the wife and payment of maintenance is sought to be avoided on the ground of her living in adultery but the plea fails, such plea by itself is sufficient to entitle her to remain apart, from her husband. Such allegation by the husband against the wife which,causes mental anguish of the deepest character, and is a grave psychic assault on her, shatters the marital peace and makes living together incompatible. The learned Magistrate lost sight of such fact and hence even though she might not, have been able to prove the case of demand of dowry, yet the plea of adultery having failed,,it should have been held that she bad become entitled to maintenance.

As regards the income of the opposite party at appears from the evidence that the opposite party bad no independent source of income except having a share in the joint family property of 14 acres of land with three brothers and his mother. The brothers are admittedly employed. There is evidence however that the Petitioner is aged 32 to 35 years and is an able bodied person, and has also read upto matriculation. He is a person belonging to Scheduled Caste it thus, cannot be denied that the husband is in a position to maintain the wife and at any rate, once a person is able bodied and is capable to earn, the fact 0''� his being unemployed or not earning is not relevant so far as the direction of payment of maintenance is concerned. In that view of toe matter. I would fix the maintenance payable to the wife at the rate of Rs. 100/- per month. '' It goes without saying that the maintenance is payable since the date of the application. The arrears of maintenance be paid at the rate of Rs. 500/- per month starting from the month of February 1989 payable within second week of ''that month. Besides the Petitioner is also to par the monthly maintenance of Rs. 100/- .from the same date of February, 1989 and continue to pay each month thereafter.

Mr. Misra. learned counse1 appearing for the opposite party has made a further submission that the husband is willing to maintain the wife and that a petition to that effect had also been filed before the learned Sub-divisional Judicial Magistrate. Sitting in revision, it will not be possible for this Court to decide that matter. It is however open to the opposite party to make appropriate application u/s 125 (5), Code of Criminal Procedure before the appropriate authority for such .relief, if be is so advised.

An affidavit has also been filed in the Court on 2-1-1989 by the Petitioner''s father that the opposite party has again married on 13-7-1986 during the pendency of the revision to on Chanchala Dei and that a son has also been born to him through such wife. The affidavit cannot be taken any note of in this proceeding and is rejected..

The revision is accordingly allowed.