Sobha Singh Yadav vs Smt. Dhankali and Others

N.N. Sharma, J.—This revision is directed against order dated 10-5-1983 by Sri Y.R. Tripathi, learned Additional Sessions Judge, Ghazipur in Criminal Revision No. 134 of 1982 by which he reversed the judgment and order of Sri Ami Chand Verma, learned 1st Additional Munsif Magistrate, Ghazipur rejecting the application of opposite parties for maintenance u/s 125 of Code of Criminal Procedure on 4-9-1982.

Admitted facts are that parties were married according to Hindu rites about twenty years prior to the date of filing of application of maintenance on 28-10-1978. Two male and two female children were born out of the wedlock. So far as the eldest daughter is concerned, she is not in the picture as she is already married and living with her husband. The remaining three children viz.; Km. Indrawati, Dinesh Chandra and Suresh Chandra were living with their mother. Suresh Chandra was blind aged about five years or so. Dinesh Chandra was aged about 10 or 11 years and Km. Indrawati, who is married now, was aged about 12 years at the time of filing the petition. Suresh Chandra is dead now. He expired pending the proceedings in revision.

It was averred in the petition that the revisionist was employed in PAC, Jaunpur and his present salary was about Rs. 500/- per month. He had also income from his holding; he has neglected to maintain the wife and minor children long before the institution of petition on account of his illicit connection with his sister-in-law.

It was further alleged that on account of want of means, the Petitioner and her minor children were destitute and starving; in order to save their lives, atleast a sum of Rs. 300/- per month was essential to meet their both ends meet. The husband was in affluent circumstances to pay the said amount.

In his written statement, revisionist conceded that he had been sending money to his wife for her maintenance and minor children. It was pleaded that she was appropriating the agricultural produce of the holding. She became ascetic on account of her association with a co-villager Smt. Phulbasia wife of Duleshar. She has illicit intimacy with Duleshar. He further alleged that his monthly income from service was Rs. 394/- per month only out of which a sum of Rs. 50/- was deducted in G.P. fund and Rs. 10/- per month towards insurance; Dinesh Chandra was aged about 12 or 13 years and was wandering with his mother.

Learned trial Magistrate found that the conduct of the husband towards the wife was the behaviour of a gentleman and so he rejected her application for maintenance.

These findings were reversed by learned revisional court on the ground that these were perverse and unsustainable on the evidence on record. Even during the proceeding before him, he made an attempt to amicably adjust the dispute through compromise on the basis of an application paper No. 14-B but the husbad wriggled out and did not turn up on the date fixed for filing the compromise. He further found that the charge of unchastity against the wife is false; he further found that the wife has no means for maintenance; husband had sufficient income to maintain his wife and minor children who were not blameworthy and under such circumstances, he found, after a careful scrutiny of the entire material on record, that the order of learned Munsif Magistrate was improper and unjust. In the result, he allowed maintenance to the wife in the sum of Rs. 130/- per month and awarded a sum of Rs. 100/- per month to the three minor children. It was payable from 28-10-1978 which was the date on which the application for maintenance was moved.

Aggrieved by that decision, this revision was filed by the husband.

I have heard learned Advocates for parties at length.

On behalf of revisionist, the first contention raised was that the learned Sessions Judge erred in reversing the finding of fact recorded by learned Munsif Magistrate which was sustainable on evidence on record. It was not well within his competence to do so. In this connection, he relied upon Mahabir and Others Vs. State of U.P. and Others, . It appears that this case related to a proceeding u/s 145 of Code of Criminal Procedure; learned trial Magistrate held that he was unable to decide the possession of parties inter se and so the order of attachment of property could not be disturbed regarding the finding of possession by himself after reassessing the evidence. It was held that the proper course for Sessions Judge was to remand the case to the Magistrate having jurisdiction to decide the question of possession afresh. Obviously, this ruling is not in point.

The next authority relied upon by learned Advocate for revisionist has been reported in Gajadhar Singh Vs. Mahesh Chandra and Others, . It appears that in that case revisional court interfered at the instance of a private party in a case initiated on police report. It was held that it was a case of manifest error on the point of law causing injustice. Obviously, that case has nothing to do with this case. On the other hand, learned Advocate for revisionist himself cited Haunsabai Vs. Balkrishna Krishna Badigar, on this point. However, head note (A) of this case which related to a proceeding u/s 125 of Code of Criminal Procedure laid down:

(A) Code of Criminal Procedure (2 of 1974), Sections 125 and 397-- Petition by wife u/s 125 for maintenance on ground of ill-treatment by husband and second marriage by him--Appreciation of evidence by Magistrate perfunctory and capricious--No definite finding about ill-treatment and second marriage recorded--Sessions Judge in revision is justified in reappraising evidence and recording his own findings on question of cruelty and second marriage.

So this ruling supports the opposite parties and not the revisionist.

He further relied upon Smt. Saroj Devi Vs. Krishna Murari Tewari, It appears in that case that learned Sessions Judge upset a finding of fact on re-appraisal of evidence without any specification and so such order was held as illegal. In the instant case it has to be seen as to whether there was any justification on the part of learned Sessions Judge to have disturbed the finding of fact recorded by learned Magistrate on appraisal of evidence.

In this connection, I have carefully perused the statements of revisionist and her daughter Km. Indrawati who was 12 years old at the time of that deposition. I have also minutely gone through the statements of Zamir Khan OP 1, Shobha Singh OP 2 and Sheo Nath Giri OP 3 marked as DWs. A perusal of this evidence shows that all the material portions of their statements have been overlooked by learned Magistrate and there has been misreading of evidence. It was clearly admitted by revisionist in his statement that imputations of unchastity of the lady and that she became an ascetic were simply false. They further conceded that the wife used to borrow clothes and food from her relatives and her father as testified by the daughter also. It was the father of the wife who provided for marriage expenses of the daughter who was still living with her. Wife''s father maintained them and defrayed as well as the education expenses of son Dinesh Chandra. A certificate was also produced before me to show that he is a student of Class X and the allegation made by revisionist that he was vagabond was simply false. DW 3 Sheonath Giri, a co-villager of revisionist, stated that Smt. Dhankali brought cereals for her maintenance from her parents'' house and the landed property was not being managed by Smt. Dhankali. The revisionist conceded strained relationship with his wife and under such circumstances, there was ample justification on the part of wife not to live with the husband. Under such circumstances, when the findings of fact were perverse and based on misreading of evidence, it was clearly open to the learned Judge to have disturbed such findings specially when the findings were perfunctory and capricious as was held in Smt. Haunsabai v. Bat Krishna Badiger (supra). So under the aforesaid circumstances it has been interfered when substantial injustice was caused by learned Magistrate by taking a perverse view of the evidence on record. There is ample evidence on record to support the findings of learned Sessions Judge.

The next contention on behalf of revisionist was that it was nowhere pleaded by the Petitioner in the petition or in her statement that she had no means to maintain herself. Her mere allegation that she was starving was insufficient to patch up the lacuna in her application u/s 125 of Code of Criminal Procedure. In this connection, reliance was placed upon Smt. Zubedabi Vs. Abdul Khader, where it was observed:

Section 125 Code of Criminal Procedure makes it clear that the husband is required to maintain his wife " who is unable to maintain herself". That being so, it is obvious that the Petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and that he has neglected to maintain her. Where in a petition though the Petitioner averred that her husband had means and that he had neglected to maintain her, she had nowhere whispered that she was unable to maintain herself and even in her evidence the Petitioner had not deposed that she was unable to maintain herself, the claim for maintenance, held, was rightly found not tenable u/s 125.

The next authority relied upon has been reported in Bishambhar Dass Vs. Smt. Anguri and Another, which posited:

Under Sections 125(1)(a) maintenance allowance cannot be granted to every wife who is neglected by husband or whose husband refuses to maintain ther, but can only be granted to a wife who is unable to maintain herself. In the present case, the wife has not mentioned in her petition that she is unable so maintain herself. In her statement also she did not say so. All that she taid was that she was maintaining herself with some difficulty. This is not antamount to her being unable to maintain herself.

Learned Advocate for revisionist further referred to J.M. Dutta Vs. State of U.P. and Another, which posited:

Code of Criminal Procedure, 1973, Section 125--Application for maintenance--A wife is entitled to maintenance only if the husband neglects or refuses to maintain her and if she is unable to maintain herself--Court below not giving any finding on these points--Order granting maintenance--Not sustainable Manmohan Singh Vs. Smt. Mahindra Kaur, Relied on.

A mere perusal of the aforesaid authorities shall go to disclose that there must be some averments in the petition that wife has no means to maintain herself. It is obvious that the petition need not be worded with the accuracy of the pleading just like the pleading in a civil suit. In the instant case, there was specific averment in para 3 of the application that on account of lack of money, the Petitioner was dying of hunger and her childern were also on the verge of starvation and in the event of non receipt of maintenance from the husband, all of them will the on account of destitution and starvation. Obviously, this is sufficient compliance of requirements of Section 125(2) of Code of Criminal Procedure. In this connection there is statement of the wife and her daugther as well as the admissions of D. Ws. themselves referred to above that the wife for want of means had to depend on the mercy of her co-villagers from whom she borrowed clothes and food etc. Only her father maintained them. She has totally denied any appropriation of the income of the holding although according to the husband, she is misappropriating the entire income of his holding. However, his witness Sheonath Giri DW 3 has specifically contradicted him on this point. A mere look at the cross-examination of revisionist himself shows that she is living in penury and has to depend on beggery and the resources of her father to meet her both ends. Under such circumstances, this contention also fails.

The next point raised by learned Advocate for revisionist was that be had no sufficient means to maintain his wife. On this point, there is cogent evidence on record to show that the income from his salary and holding was not less than Rs. 500/- p.m.

It is further significant to note that she has to maintain herself and two minor childern and to educate her son Diensh Chandra. There is evidence on record to show that the revisionist has even neglected to support his only son Dinesh Chandra and so his neglect in this matter is patent and apparent on the evidence on record. The mere fact that he might be displeased with Smt. Dhankali does not justify such total negligence of this minor son nor can absolved him of his statutory liability.

It appears that revisionist falsely set up the plea of payment without obtaining any writing or money order receipts from the wife and even did not comply with the interim order of this Court passed on 8-8-1983. He did not deposit any amount towards the maintenance allowance for withdrawal by the wife.

Having regard to these hard days and the growing age of the minor childern, the amount of maintenance cannot be treated as excessive. However, since Suresh Chandra is dead now and so the amount of maintenance awarded to children is reduced to a sum of Rs. 50/- per month. However, this maintenance to the childern shall be payable till they attain the age of majority.

In the result, revision is partly allowed. The quantum of maintenance payable by revisionist from 28-10-1978 onwards is reduced to a sum of Rs. 150/- per month only. The impugned order is modified accordingly. The stay order dated 8-8-1983 is dissolved.