Crl.Revn. No.687 of 2002

8th April, 2002

Petitioner Counsel: PRAMOD MEETHA,BAJPAI

Cases Cited:
Bhaggobai Vs. State of M.P., 1984 MPWN Note 505 [Para PARA9]
Kuntibai Vs. Alakhram, 1999(1) Jab LJ 89 [Para PARA9]
Rajathi Vs. C. Ganesan, AIR 1999 SC 2374 [Para PARA9]

JUDGMENT

-The applicant-wife has preferred this revision against the order dated 20-9-2001 passed by the learned Addl. Sessions Judge, Narsinghgarh District Rajgarh in Cr.Revision No.17/2001 setting aside the order of grant of maintenance to the applicant passed in M.Cr.C. No.33/98 by the learned Judicial Magistrate, First Class, Narsinghgarh on 4-10-2000.

2. The applicant-wife Chandrakala had filed an application on 12-5-98 against the non-applicant/husband Bhagwansingh for grant of maintenance on the ground inter alia that she was ill-treated and thereafter turned out from the house because she was black and ugly. She has no means to maintain herself and the non-applicant is not taking her care. She had also alleged that the non-applicant had entered into a second marriage.

3. The non-applicant/husband denied all the allegations levelled by the wife and contended that she of her own accord had gone to the house of her parents with brother by promising for her return after 7-8 days. Thereafter, she did not return back. Therefore, he and his brother-in-law had tried their level best to take her back and visited the house of his in-laws for taking her back, but she refused to come and she had stated that after such a long period of marriage there was no child born out of their wedlock, so he can, if so desired, may enter into the second marriage and she did not want to live with him. Even thereafter, the non-applicant/husband did not enter into second marriage and expressed his desire to live with her and maintain her. But his all efforts went in vain.

4. Before the learned trial Court, the applicant has examined herself and her witness PW-2 Keshavsingh and PW-3 Shambhoosingh, whereas the non-applicant examined himself and his witness DW-2 Balkishan.

5. The learned trial Court, after appreciating the evidence on record, gave the finding in para 12 that though the applicant wife has mentioned in her application as well as gave statement in the Court about the second marriage of the non-applicant after three-four years of her leaving the house of the non-applicant, but her version has not been corroborated by any witness. The learned trial Court has also gave finding that about the second marriage of the husband, no reliable and acceptable evidence has been adduced by the applicant-wife, but normally every wife would like to live with her husband if there is no special reason for not living with the husband. Learned trial Court has not given the clear finding on this issue of second marriage of the non-applicant. The trial Court, while framing the question for consideration in para 5 has also not framed this question for consideration. The trial Court has also given the finding in para 13 that though the husband-non-applicant has submitted that he had gone to take his wife back so many times, but he was not able to show the reason as to why she was not willing to live with him. The Court below has also given finding in para 15 that the applicant is earning ten to twelve thousand rupees per year by cultivation, whereas the applicant-wife was residing with her father and the applicant has ignored his wife and did not maintain her without any sufficient cause. Therefore, the order for grant of maintenance @ Rs.400/- per month from the date of order.

6. Against this order, the husband went up in revision and the learned Revisional Court has set aside the order of grant of maintenance on the ground that the wife was not able to prove by adducing cogent and reliable evidence that the non-applicant Bhagwansingh entered into second marriage. The learned Revisional Court has also held in para 12 of its order that according to the statement of the witness of the wife PW-3 Shambhoosingh the applicant is residing separate from her husband since last 12 years and she was married before 20 years. In cross-examination also, this witness has stated in para 3 that the applicant came to the house weeping last time after four years of the marriage. He has also stated that the-non-applicant/husband did not beat her before him. PW-2 Keshavram, the witness of the applicant has also deposed in para 3 that she is earning Rs.20/- to 25/- per day. He has also stated that the marriage was solemnized before 20 years. The learned Revisional Court has set aside the order of grant of maintenance passed by the trial Court mainly on three grounds. Firstly, that she failed to explain and also did not show any reason for not taking action since last 12 years and as to how she was maintaining herself during this period. Secondly, the wife-applicant has also failed to prove ill-treatment by the applicant and on this ground her evidence is too discrepant to rely. Thirdly, though there is no reliable evidence adduced by the applicant-wife for second marriage of the non-applicant/ husband and the same finding has been given by the trial Court in para 12 of its order. The trial Court has erred in drawing the inference about second marriage.

7. In the reply as well as in the evidence, the non-applicant-husband and his witness have categorically stated that they tried their level best to take the applicant back but she refused to come and live with the non-applicant. After filing the revision before this Court on 15-1-2002, the Counsel for the applicant/wife submitted that the applicant/wife was willing to live with the non-applicant/husband, if he so desires. On this date (15-1-2002), learned Counsel for the non-applicant/husband sought time to consult his client. Therefore, the revision was fixed on 14-2-2002 for presence of both parties (applicant and the non-applicant) on 14-2-2002), the applicant-Chandrakala was present, but the husband-non-applicant Bhagwansingh was not present because of his ill-health. In his absence, before the Court, the applicant-wife had expressed her desire to live with the non-applicant-husband. Thereafter, the case was again fixed on their prayer for reconciliation on 20-2-002. On 20-2-2002, the matter was again adjourned and listed on 14-3-2002. On 14-3-2002, the non-applicant-husband was present in person along with his counsel. He expressed his desire to keep and maintain the applicant-wife, but on this date the applicant was not present. The non-applicant-husband paid Rs. 200/- towards expenses for her coming from Narsinghgarh to Indore and he sought time to pay the remaining Rs.50/- towards the expenses on the next date of hearing. He beared these expenses for the presence of the applicant who being a woman came along with one person. The case was postponed for 4-4-2002. On 4-4-2002, the applicant, non-applicant and their counsel were present but at the outset the applicant and her father Kaluram have refused to go with the non-applicant/husband though the husband non-applicant was ready to take her back to her matrimonial house and maintain her. Because of the negative attitude of the applicant and her father, reconciliation proceeding remained unsuccessful. All these facts have been recorded by this Court in the order-sheet dated 4-4-2002. Thereafter, with the consent of the parties, the revision was heard for admission. It was admitted and also heard finally for its disposal.

8. This Court has gone through the entire record and also heard the learned Counsel for the applicant and the non-applicant and is of the considered opinion that the applicant has failed to establish by adducing reasonable evidence about ill-treatment and turning her out by her husband. She did not disclose this fact to anybody except her father and also did not lodge any complaint in any community Panchayat or at the Police Station. She has also failed to prove the second marriage of the non-applicant after three/four years of her separate living. Both the Courts below have given finding in this regard. The witness of the applicant-Keshavsingh (PW-2) has admitted that she was earning twenty to twenty-five rupees per day and her witness PW-3 Shambhoo Singh has stated in his examination-in-chief as well as in cross-examination that the applicant was residing away from her husband since last 12 years. The applicant/wife failed to explain as to why she did not file any application for grant of maintenance. These facts have been considered in detail by the Revisional Court. Therefore, it cannot be said that the approach of the Revisional Court was illegal or perverse. The Revisional Court has considered the rival contentions in detail and gave sound reasoning for setting aside the order passed by the trial Court based on conjectures and surmises. Although there is no limitation prescribed in the statute for the wife or other persons entitled for maintenance under Section 125 of the Code of Criminal Procedure, but at the same time, such persons are required to explain reasonably the undue delay in recoursing the Court of law. This delay shows the conduct of the party which is very much relevant for appreciating the fact and issue involved in the case.

9. Learned Counsel for the non-applicant has relied on the judgment of this Court reported in 1984 MPWN Note 505 (Bhaggobai Vs. State of M.P.) and 1999 (1) Jab LJ 89 (Kuntibai v. Alakhram). In both these cases, this Court has considered the unexplained and inordinate delay fatal to the wife in filing the application for grant of maintenance after ten to twelve years. Learned Counsel for the applicant has placed reliance on a judgment of the Apex Court in Rajathi Vs. C. Ganesan, AIR 1999 SC 2374. In this Judgment the Supreme Court has held that the fact that husband is living with another woman is a justifiable reason for the wife to live separate and her entitlement for maintenance. Another Judgment relied upon by the learned Counsel for the applicant is reported in 2001(2) MPWN 159. This judgment is on the question of words "unable to maintain herself and to protect the wife from destitution and vagrancy". Both these judgments are not relevant in the aforementioned factual matrix of the present case. The wife has utterly failed to prove by adducing reasonable evidence to construe the matter in her favour as alleged by her. This Court does not find any reason in the backdrop of the present case as well as the behaviour of the applicant and her father at the initial stage showing her willingness to live with the husband, and took sufficient time as well as the journey expenses from the non-applicant and thereafter on 4-4-2002 refused to go with the husband at the outset without stating or showing any reason. This Court had an occasion on that day to watch their demeanour which was showing that the wife and her father were interested only in maintenance whereas the non-applicant-husband has expressed his full desire to take her with him right from the Court with the promise to maintain her and keep her properly without there being any complaint.

10. In the aforesaid facts and features of the case, it emerges that the Revisional Court has rightly set aside the order of maintenance passed in favour of the applicant-wife by the trial Court.

11. In the result, this revision fails and is hereby dismissed and the order of the Revisional Court is upheld.

Revision dismissed.