2010 ALL MR (Cri) JOURNAL 273
(MADHYA PRADESH HIGH COURT)
K.S. CHAUHAN, J.
Badri Prasad Vs. Anto Bai
Cri. Rev. No.1972 of 2007
9th March, 2010
Petitioner Counsel: MADAN SINGH
Respondent Counsel: VISHAL DAGHAT
Criminal P.C. (1973), S.125 - Maintenance - Wife living with her parents - No means to maintain herself - Husband who had illicit relations with his bhabhi was treating applicant with cruelty - Husband having sufficient means to maintain wife - Maintenance of ' 500/- awarded by Court below confirmed. (Para 10)
-This criminal revision under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the applicant being aggrieved by the impugned order dated 22-8-2007 passed by the Sessions Judge, Damoh in Criminal Revision No.49/2007 arising out of order dated 21-3-2007 passed by the JMFC, Damoh in Criminal Case No.30/2004, whereby the application filed under section 125 of Criminal Procedure Code by the respondent has been allowed and the applicant is directed to pay maintenance at the rate of ' 500/- per month.
2. The brief facts of the case are that the respondent Smt. Anto Bai was married with applicant Badri Prasad before 20 years back. They lived happily and peacefully. Out of their wedlock three children were born. Prior to 6 months of filing of the petition under section 125, Criminal Procedure Code the applicant started maltreating, abusing and beating her. She alleged that he has developed illicit relationship with his bhabhi Suhagrani. She was turned out from the house since then residing in her parental house. He made no efforts to take her back. She also gave notice to him. She is doing nothing and is dependent upon her parents for maintenance. On the contrary the applicant owns 30 acres of agricultural land and earns ' 1 lakh. He also earns ' 50/- per day by selling milk. Since he has neglected her, therefore maintenance allowance at the rate of ' 3,000/- per month be provided to her.
3. Applicant filed written statement denying all the allegations levelled by the respondent mainly contending that she herself has gone to her parental house after quarrelling with him. He tried several times to take her back to her matrimonial house but she refused to live with him. He is ready to keep her with him. He has further contended that he is a labour and earning only ' 40/- to 50/- per day, hence not in a position to provide maintenance allowance to his wife who is living separately.
4. Both the parties adduced the evidence. Respondent Smt. Anto Bai (AW-1) examined herself, Tikaram (AW-2), Kamod Singh (AW-3), Bablu (AW-4) and Ramji (AW-5). Applicant Badri Prasad (NAW-1) also examined himself and his son Ravi Shankar (NAW-2). After analyzing the evidence, the Magistrate found that respondent is living separately without sufficient cause, but it was also found that she is unable to maintain herself whereas the applicant is able to maintain his wife and ultimately rejected the application under section 125 of Criminal Procedure Code filed by the respondent. Being aggrieved by that order she preferred Criminal Revision No.49/07 which was allowed and the applicant has been directed to pay maintenance at the rate of ' 500/- per month. Being aggrieved by the impugned order, the instant revision has been preferred by the applicant on the grounds mentioned in the memo of revision.
5. Shri. Madan Singh, learned counsel for the applicant submitted that the respondent is living separately without any just cause therefore she is not entitled for any maintenance allowance. The Court below has committed an illegality in awarding maintenance allowance to the respondent. He has placed reliance on the decision rendered in the case of Ratan Lal Vs. Dhapu Bai, 2003(1) MPJR 125.
6. On the contrary Shri. Vishal Daghat, learned counsel appearing on behalf of the respondent supported the impugned order mainly contending that the applicant subjected her to cruelty, therefore she is residing separately. In such circumstances, she is entitled to get maintenance. He has placed reliance on the decision rendered in the case Dalibai Vs. Rajendra Singh, 2006(1) MPLJ 495.
8. Anto Bai (AW-1) has deposed that she was married with applicant 20 years back and discharged the matrimonial obligations. Out of their wedlock three children were born. Later on the applicant developed illicit relationship with his bhabhi. He started abusing misbehaving, ill-treating and beating to her, therefore she is residing in her parental house. She has no means of income whereas the applicant has 30 acres of agricultural land and earns ' 1 lakh from that land. He also earns ' 50/- per day by selling milk. He has neglected her to maintain. He did not came to take her back to her matrimonial house ever after giving the notice. The other witnesses Tikaram (AW-2), Kamod Singh (AW-3), Bablu (AW-4) and Ramji (AW-5) have supported her evidence.
9. On the contrary applicant Badri Prasad (NAW-1) and his son Ravi Shankar (NAW-2) have given the evidence that the respondent is residing in her parental house on her own accord. He has not subjected her to cruelty and has no illicit relationship with his bhabhi. He also tried to take her back but she refused to come.
10. It is evident that respondent is residing in her parental house and has no any means to maintain herself. Since he is having illicit relationship with his bhabhi and thereby subjected her to cruelty, therefore she is living separately. It is sufficient cause to live separately and claim maintenance from her husband. The Court below has rightly arrived at the conclusion that she is living separately for the sufficient cause. There is concurrent finding of both the Courts below that respondent is not able to maintain herself whereas the applicant has sufficient means to maintain his wife. The finding is based on the evidence, therefore respondent is entitled to get maintenance from her husband and the Court below has not committed any illegality in awarding maintenance allowance at the rate of ' 500/- per month to be paid by the applicant to the respondent. This revision is meritless and deserves to be dismissed.