Vishal Singh vs Sureshta Rani

APPCR No. 06/2019

For the reasons stated in the application, which is duly supported by an affidavit, the same is allowed and the certified copies of the orders at this stage are dispensed with.

Disposed of.

CRMC No. 65/2019

The petitioner in this petition has challenged the order dated 28.10.2016 passed in file No. 01/Rev. titled "Sureshta Devi Vs. Vishal Singh" by the Learned Additional Sessions Judge, Rajouri, wherein the revisional Court has set aside the order of Learned Sub Judge, Nowshera, thereby dismissing the application under Section 488 Cr.PC on 15.05.2015.

In this petition, the petitioner has challenged the impugned order on the ground that the order of the revisional court is not as per law. There is no evidence to the extent of subsistence of a valid marriage between the parties and the respondent has made purely bald allegations in the revision petition as well as application under Section 488 Cr.PC. The alleged documentary proof of marriage was fabricated. The respondent has failed to produce any evidence of alleged marriage between the parties.

I have considered the contentions of the learned counsel for the petitioner.

From the perusal of the documents attached with the petition, it is evident that respondent has filed a petition under Section 488 Cr.PC against the petitioner on 17.07.2012 on the ground that she is living separately in her parental house and during the period, petitioner has not provided maintenance to her. The respondent has no source of income while the petitioner is a man of means and earns Rs. 25,000/- per month. Petitioner/husband appeared before the trial Court and filed objections. In the objections, the petitioner has denied the factum of marriage. The petitioner has categorically stated in objections that the claimant was not his wife and also denied the fact that they ever resided together as husband and wife. Accordingly, he prayed for dismissal of the petition.

Thereafter the parties led the evidence before the Court below. After conclusion, the trial Court dismissed the petitioner on 15.05.2015 on the ground that the respondent has failed to establish the basic two ingredients for grant of maintenance namely that she is the legally wedded wife of the petitioner and that the petitioner being her husband has refused or neglected to maintain her. The concluding paragraph of the said order is reproduced hereunder:-

"Even in case, this court does come to the conclusion that the petitioner was the legally wedded wife of the respondent, the petitioner is also required to establish before this Court that she has been neglected by the respondent and the respondent has refused or neglected to maintain her. In the case in hand there is no pleading to this effect in the petition filed by the petitioner. She has merely stated in her petition that she is living separately from the respondent in her parent's house for the last few months. The petitioner has nowhere alleged that the respondent neglected to maintain her nor did she ever appear in the witness box to give any statement in the case to this effect. The only allegation of neglect comes from the sole witness examined by the petitioner to this effect namely PW-Sham Singh who has deposed that the respondent and his parents have thrown the petitioner out of their house. Thus witness, however, nowhere mentions when the petitioner was thrown out from the house and in absence of any corroborative statement his deposition does not hold much weight.

Thus what emerges from the evidence is that the petitioner has failed to establish the basic two ingredients for grant of maintenance namely that she is the legally wedded wife of the respondent and that the respondent being her husband has refused or neglected to maintain her. In view of the above discussion, the petitioner does not deserve to be granted any maintenance. As such, the petition in hand is dismissed. File is accordingly disposed of and shall be consigned to records."

The respondent herein filed a revision petition against the said order before the Additional Sessions Judge, Rajouri and the learned Additional Sessions Judge, Rajouri vide order dated 28.10.2016 allowed the revision petition and reverse the order of the trial Court by directing the petitioner herein to pay Rs. 2500/- per month as maintenance. The concluding paragraph of the said order is reproduced hereunder:-

"Hon'ble Apex Court in case Rajathi Vs. C. Ganeshan AIR 1999 SC 2374 has observed that "Section 125 is enacted on the premise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them" From the above judgment of Hon'ble Apex Court, it is clear that discharge of obligation that husband has no means and did not neglect or refuse to maintain lies on the husband himself. Further, in the present case Respondent has denied his relationship with the petitioner which also shows his conduct and thereby implies his neglect and refusal to maintain the petitioner. Accordingly, on this ground also the order impugned cannot be said to be proper. It is settled law, that proceedings under Section 488 Cr.PC are of summary nature and same does not settle the rights of the parties finally. It is open for the parties to approach the civil court for settlement of their rights. The object of the provision is to provide immediate succor to a destitute wife etc, therefore, the hyper technical approach in such summary type of inquiry is not proper as same will defeat the very purpose of enacting the provision.

From what has been discussed above the order impugned cannot be said to be proper and legal and therefore, cannot sustain. Hence, this revision petition has merit and therefore, is allowed. Accordingly, the order impugned warrants interference under revisionary powers of this court and therefore is set aside.

Now the only question which remains for adjudication is as to what amount of maintenance can be fixed in favour of the petitioner wife. Petitioner wife has pleaded that monthly income of the respondent from all sources is Rs. 25,000/- p.m that he is idle and has no source of income and is sick and unable to work but he has brought nothing on record to prove his ailment or inability to earn. In his cross examination by the Counsel for the petitioner has admitted that he used to drive a Tractor but after ailment is not able to drive Tractor. In the absence of any material on record substantiating any serious ailment respondent is to be presumed as an abled bodied person capable to earn and consequently cannot be permitted to escape from his moral and legal obligation to maintain his wife. He, therefore, can be presumed to have capacity to pay Rs. 2,500/- p.m to the petitioner which he is, accordingly, directed to pay the petitioner. The maintenance so ordered shall be payable from the date of order. Revision petition is accordingly, disposed off and shall got to records after its due compilation. LCR be returned."

Section 488 Cr.PC reads as under:-

"{Order for maintenance of wives , children and parents.

If any person having sufficient means neglects or refuses to maintain.

a)his wife , unable to maintain herself, or

b)his legitimate or illegitimate child, whether married or not, unable to maintain itself, or.

c) His legitimate or illegitimate child( not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or.

d) His father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding two thousand rupees in the whole, as such magistrate thinks fit and to pay the same to such person as the magistrate may from time to time direct.

Provided that the magistrate may order the father of a minor female child referred to in clause (b) to make such allowances, until she attains her majority, if the magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Section 488 Cr. PC is a social legislation, strict law of pleading are not applicable. Procedure is of summary nature; Maintenance is right which accrues to a wife against husband the minute former gets married to latter. It is not only a moral obligation but also a legal duty. The primary object for granting maintenance to a deserted and destitute is for ensuring that wife should not be left beggared. The remedy provided U/s 488 Cr. PC is a summary remedy for securing reasonable sum by way of interim maintenance.

From a bare perusal of the order of the revisional court, it is evident that revisonal court has correctly held that procedure under Section 488 Cr.PC is of summary in nature and same does not settle the rights of the parties finally and it is open for the parties to approach the civil court for settlement of their rights.

If the fact or legality of marriage between the claimant and husband is disputed then the strict proof of marriage is not necessary for claiming of maintenance under 488 Cr.PC no strict proof of performance of marriage is required if the Court is Satisfied that claimant and her husband lived as husband and wife; the standard of proof of marriage in proceedings under this section is not as strict as required in trial of offences under Section 494 of the Ranbir Penal Code; if the claimant in proceedings under this section succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption; once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under this section .A broad and expansive interpretation should be given to the term "wife" to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under this section so as to fulfil the true spirit and essence of the beneficial provision of maintenance under 488 Cr.p.c .

A cursory glance of evidence reproduced in order of trial court, it is evident that there is evidence that marriage ceremony between parties took place at Arya Samaj Jammu on 16.2.2010 after executing the relevant documents in the Court (marriage document). There is also evidence that parties also lived together for some times in rented room at Sunderbani. There is also mention of Arya Samaj certificate and photographs of marriage, in order of JMIC ; the PW Subash chander of Arya Samaj has also proved factum of marriage as per Arya Samaj record. This evidence was sufficient to infer that claimant was married with petitioner. By simply denying the fact of marriage would not be enough to deny the maintenance under section 488 Cr.p.c to wife.

Further conduct of petitioner is also relevant for decision of this petition. Because order has been passed on 28.10.2016, whereas present petition has been filed after more than two years. It is not the case of petitioner that there is some bar of law in deciding the revision petition by court below.

In view of above this petition is dismissed at admission stage.