Saygo Bai Vs Chueeru
Bajrangi
J U D G M E N T
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
The
appellant Saygo Bai, wife of Chueeru Bajrangi along with her two minor children
Jivti (daughter) and Basant (son) filed an application under Section 125
Cr.P.C. against her husband Chueeru Bajrangi. She pointed out there in that her
husband had taken a second wife, namely, one Smt. Gulab Bai and that he was a
salaried employee in a Government department. However, he was neglecting to
maintain Saygo Bai and her two children. She also pleaded that she had cordial relationship
with her husband up to year 1989. However, the respondent-husband started
avoiding the family. During the year 1990, he took Gulab Bai as his second
wife. As a result, the appellant and her children were thrown out. She claimed
the maintenance of Rs.3,000/- per person per head. The respondent-husband resisted
this application claiming that he always maintained good relations with Saygo Bai
and used to visit his village Chalani, where his wife and children resided with
his parents, off and on. He claimed that when Basant, the younger child was
only six months old, Saygo Bai left her matrimonial house without any rhyme or reason
and went to her father's place at village Banda. He further pleaded that he
tried to bring back the appellant and had gone to that village along with one
Shobha and Haria of his village but she refused to comeback. All this,
according to him, happened five years prior to the second marriage which he had
performed for taking care of his two children. In short, he claimed that two children
were always with husband and, therefore, there was no question of abandoning them.
The claim of the respondent-husband was that the wife left his company without
any rhyme or reason. He then pointed out that it was only after five years of
abandonment of matrimonial house that his wife Saygo Bai had filed the
application for maintenance under Section 125 Cr.P.C. thereby he further pointed
out that she was not entitled to any maintenance as she had left his company
without any justification.
3.
Saygo
Bai examined herself in support of her claim and pointed out that till 1989 she
used to live along with her two children and the respondent-husband used to
visit off and on. However, after he took his second wife, he stopped coming altogether
to the village. She also examined one other witness PW-2, Naua. She also spoke
about the second marriage of the non-applicant. The third witness Kahru Ram (PW-3)
was also examined who was her near relation. She also asserted that the husband
Chueeru Bajrangi had contracted the second marriage while the appellant Saygo
Bai was living with him. She admitted that the second wife usedto take care of
the father of the respondent-husband. Kahru Ram was also examined to support
the story of the appellant being thrown out of the matrimonial house.
4.
On
behalf of the respondent-husband, he examined himself and claimed that when he
had came to his village from Balangi, where he was posted, his both children
were lying unattended in the house and old parents were also not being taken
care of and, therefore, he along with one Sona Ram (DW-2) and Jharia Ram (DW-3)
went to bring her back and asked her to come back and take care of children and
parents but she refused to come back. He, therefore, left the children to the care
of his parents and thereafter the appellant waited for 4-5 years and approached
the Court only after he got married with Gulab Bai. The two other witnesses
supported the evidence of the respondent-husband.
5.
The
Trial Court has returned a finding that Saygo Bai(appellant herein) had not
come to the Court with clean hands. A strange observation has been made that the
appellant used to visit her matrimonial house and also used to meet Gulab Bai
but she never made any complaint in the village regarding her being driven out
of the matrimonial house. Again, the Trial Court, very strangely, gave a finding
that the wife-Saygo Bai never tried to hold Panchayat nor made public the
reason for her living in her parents' house. Lastly, the Trial Court found that
the children were not living with her and the claim of the petitioner (appellant
herein) in her evidence that the respondent-husband abducted away the children
secretly was also not correct. On account of her not mentioning so in her
application the Trial Court found fault with her and strangely gave a finding
that Saygo Bai had no sufficient reason to live separately from
respondent-husband Chueeru Bajrangi. The Trial Court also held that the
children being appellant Nos.2 and 3 before the Trial Court were not dependent
upon Saygo Bai. It also found that the respondent husband was justified in
getting married again since the appellant did not go to her husband for 4-5
years and, therefore, it could not be said that the respondent neglected or
avoided to maintain his wife. On the basis of these findings, the Trial Court
dismissed the application.
6.
A
revision was filed against this order. It was pointed out on behalf of the
petitioner (appellant herein)that even if it is accepted that she stayed away from
husband for 4-5 years, she was still entitled to the maintenance, at least from
the date of the application on account of the respondent having married again
and she could refuse to stay with him on account of the second marriage. This
argument was repelled by the respondent on the ground that the petitioner
(appellant herein) had compelled the respondent to enter into the second
marriage by not staying with him for 4-5 years. The Revisional Court very
strangely in paragraph 12 observed that the respondent had become helpless and,
therefore, got married only for his family. On that ground, the Revisional
Court dismissed the revision.
7.
The
appellant, therefore, approached the High Court byway of a petition under
Section 482 Cr.P.C. It was pointed out to the High Court by her that she was
the legally wedded wife of the respondent and admittedly the respondent had taken
a second wife and, therefore, she was bound to be granted some maintenance. On
behalf of the respondent, it was argued before the High Court that the
respondent had contracted second marriage only after refusal of the appellant
to join him and, therefore, she was not entitled to any maintenance under
Section 125 Cr.P.C. and she may avail remedy before the Civil Court. The High
Court relied upon the so-called admission by the appellant that she herself had
left the house of the respondent and her husband had come for taking her back
with him to his house. The High Court then made a very strange observation that
the appellant had not left the house on the ground of second marriage performed
by the respondent but the respondent had contracted the marriage on the ground
that the appellant left the house and failed to discharge her matrimonial obligations.
On this ground, the High Court dismissed the petition. The appellant is now
before us.
8.
To
say that we are shocked by the orders passed by all the three Courts below
would be an understatement. All the Courts below have completely misunderstood the
second proviso of Section 125 (3) Cr.P.C. and the Explanation thereto. Section
125 (3), Cr.P.C. reads as under: 7 "125.(3) If any person so ordered fails
without sufficient cause to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole,
or any part of each month's 4[allowance for the maintenance or the interim maintenance
and expenses of proceeding, as the case may be,] remaining unpaid after the
execution of the warrant, to imprisonment for a term which may extend to one
month or until payment if sooner made: Provided that no warrant shall be issued
for the recovery of any amount due under this section unless application be
made to the Court to levy such amount within a period of one year from the date
on which it became due: Provided further that if such person offers to maintain
his wife on condition of her living with him, and she refuses to live with him,
such Magistrate may consider any grounds of refusal stated by her, and may make
an order under this section notwithstanding such offer, if he is satisfied that
there is just ground for so doing. Explanation.--If a husband has contracted
marriage with another woman or keeps a mistress, it shall be considered to be
just ground for his wife's refusal to live with him." Instead the Courts
below have relied on sub-section (4)which is as under: "(4) No wife shall
be entitled to receive an 4[allowance for the maintenance or the interim maintenance
and expenses of proceeding, as the case may be,] from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she
refuses to live with her husband, or if they are living separately by mutual
consent."
9.
In
our opinion, all the Courts below have shown scant disregard for the second
proviso to Section 125 (3) and the Explanation. It was an admitted position that
the respondent had taken a second wife, namely, Gulab Bai. The respondent not
only admitted this position in his written statement and evidence but also
tried to justify his second marriage on the ground that the appellant had left his
company and had refused to come back to him and had also not cared for the
children. He had to keep the children with his parents at village Chalani. He
has, in his examination-in-chief itself, stated that he waited for 5-6 years in
the hope that his wife would come back and take care of his children and his
parents but he took the second wife since she did not come back. In fact, with this
specific admission in the examination-in-chief itself, there was no question of
a finding that the appellant was not justified in claiming the maintenance. All
the Courts have committed a very serious error of law in holding that since the
appellant had left the house for 4-5 years, therefore, the respondent-husband
was justified in getting married again. Things did not stop here. The Courts
have gone ahead to suggest that since the appellant had left the house without any
rhyme or reason, therefore, even if the second marriage had been contracted,
the petitioner (appellant herein) would still not be entitled to the
maintenance merely because she had left the matrimonial house earlier. This is
completely erroneous.
10.
We
are not satisfied on the appreciation of evidence by the lower Courts. We have
gone through the evidence of the appellant and the other witnesses. She has very
specifically stated that after the marriage till the children were born, her
relationship was cordial with her husband. Thereafter, the respondent brought a
second wife, namely, Gulab Bai at village Chalani where she was residing in her
matrimonial home. She was very specific in stating that when the husband
brought the second wife, he declared that he would not keep the appellant and started
ill-treating her and threw her along with children out of the house. In her
cross-examination, she admitted that on her husband's request she was not
prepared to go to his house. This question was put to her in a very tricky
manner. It was not stated as to at what point of time the husband came to take her
back. She has also stated in her cross-examination that her children were with
her but for the last one year they were with the respondent. She also admitted very
fairly that the respondent was educating the children. She also asserted that
for the last 4 years her entry to the house of her husband was stopped. It is
true that in paragraph 13 of the cross-examination she had stated that she had not
been to the house of the non-applicant(respondent herein) for 4-5 years and
then the non-applicant i.e. the respondent herein entered into the second
marriage with Gulab Bai. All the Courts below have relied only on this
so-called admission to hold that she had abandoned her husband for 4-5 years
and it is as a result of her refusal to come to the house of her husband that
the husband took the second wife. In fact, this is a totally incorrect and perverse
appreciation of the evidence. The Court must read whole evidence. One stray admission
cannot be read in isolation with the other evidence. She has very specifically stated
that she was thrown out of the matrimonial house on account of the second wife.
All the Courts below have ignored all her evidence and chosen to rely on two
lines in paragraph 13 of her cross-examination. In our opinion, this was wholly
perverse appreciation of evidence. The Courts have also made a point that she
did not call for a Panchayat and, therefore, have held against her. We do not understand
the implication of this. Even if she did not call a Panchayat, it did not mean
that the respondent was justified in throwing her out of the house and getting
married second time.
11.
The
finding of the Courts that initially she had left the company and desisted from
joining the husband for 4-5years and, therefore, she would always be disentitled
to claim maintenance is clearly erroneous and incorrect. In the wake of the
admitted second marriage of the respondent, the appellant would be entitled to
claim maintenance and her earlier refusal to join the company of the respondent
would be of no consequence whatsoever. In fact from the evidence we find that
she had not forsaken the company of her husband without any reason. She was
very clear in her evidence that the respondent stopped visiting the matrimonial
house after his second marriage. She may not have filed the maintenance application
immediately on her being thrown out but she asserted that she had taken such
action barely within two years after she was thrown out. She was very clear
that she was thrown out on account of the respondent having contracted the
second marriage. It is nowhere brought on record that she had left the house
without any rhyme or reason. In fact, it would be completely unnatural for her to
leave the house leaving her children as is claimed by the respondent. In that
backdrop, the claim of the appellant appears to be correct that she was thrown
out along with children and it was thereafter that the children were brought by
the husband. She was candid enough in admitting that at the time of entering
the witness box, it was the second wife who was taking care of the children. This
suggested honesty on the part of the appellant. All this evidence was
completely ignored. We are quite aware that this Court does not go into the
evidence where the Courts below have recorded concurrent findings of fact. However,
where we find that the appreciation of evidence by the Courts below is totally
perverse, faulty and unconscionable findings have been arrived at, this Court
would certainly go to appreciate the evidence on record and that is precisely what
we have done.
12.
We
hold that the orders of the Courts below are wholly incorrect. Firstly, the
Courts erred in holding that she left the matrimonial house for 4-5 years and
refused to join the company of her husband and, secondly, the Courts are totally
in error in holding that on that count she has lost the right of maintenance. In
our opinion, the application, at least insofar as the appellant was concerned,
was liable to be allowed. We allow that application.
13.
Ordinarily,
we would have remanded the matter for deciding the amount of maintenance. However,
considering that the appellant is in the state of penury and not getting even
the interim maintenance, we proceed to decide that issue ourselves. The
appellant in her evidence has claimed that the respondent-husband drew a monthly
salary of Rs.2,000/- in the year 1993. Besides, he also had 20 acres of land and
grew 40 quintals of Paddy crop, 10 quintals of Wheat crop, 4 quintals of Urad
and Rawa crops and Corns etc. There is not even a word of cross-examination on these
claims and these claims have gone unchallenged. Even in his own evidence, the
respondent has not uttered even a word regarding his salary and has merely
claimed that Saygo Bai was maintaining herself by working as a labourer and
earnedRs.45 per day. He made a bald statement that there was no immovable
property in his name. He had also categorically admitted that after coming out
of the matrimonial house he never maintained Saygo Bai. Considering, therefore,
the overall situation, it is obvious that the respondent must be earning at
least Rs.10,000/- per month presently as salary being a Constable in police
force and also has other sources of income from agricultural properties. In
that view, we are of the opinion that maintenance at the rate ofRs.1,500/- per
month in favour of the appellant would be a proper maintenance. The maintenance
shall be payable from the date of the application. The three orders passed by
the Courts below are set aside. The appeal is allowed in the above terms.
..............................J.
[V.S. Sirpurkar]
................................J.
[T.S. Thakur]
New
Delhi
November
19, 2010
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