Abhey Ram vs Panmeshwari on 3 September, 1998

Punjab-Haryana High Court
Abhey Ram vs Panmeshwari on 3 September, 1998
Equivalent citations: I (1999) DMC 663
Author: R Anand
Bench: R Anand


JUDGMENT

R.L. Anand, J.

1. This is a Criminal Revision and has been directed against the order dated 13.8.1998 passed by the Court of Judicial Magistrate, 1st Class, Kaithal, who allowed the petition under Section 125, Criminal Procedure Code filed by Smt. Panmeshwari against her husband Abhey Ram. Vide impugned order dated 13.8.1998 the learned Magistrate has granted maintenance to Smt. Panmeshwari @ Rs. 400/- per month from the date of the filing of the application i.e. 10.5.1996. Aggrieved by the said order the present revision which I am disposing of in limine after hearing the learned Counsel for the petitioner.

2. Firstly, I am of the opinion that the petitioner ought to have filed the present revision in the Court of Sessions as the impugned order has been passed by Judicial Magistrate, 1st Class, Kaithal. This is in view of the judgment Sukhvinder Singh v. State of Haryana, 1998 (2) RCC 620, where the observations made by His. Lordships are as under:

“As such in my opinion, the revision should have been filed in the Sessions Court instead of High Court. In my opinion if two Courts having different hierarchy hold concurrent jurisdiction, it is always desirable that the litigant should prefer the Court at lower hierarchy. The concurrent jurisdiction of two Courts at different hierarchy is conferred under Section 399 for the reasons that in certain circumstances, the High Court would also be in a position to entertain the revision before the Sessions Court would not be adequate remedy.”

3. The Counsel for the petitioner then submitted that from the statement of the lady itself it is clear that she at no cost wants to live with the petitioner as a result of which the element of neglect without sufficient cause has not been proved. The Counsel has also referred to the statement of Rajmal, the brother of the lady. This statement has also been considered and discussed by the learned Magistrate in the impugned order and the learned Magistrate in the impugned order held as follows :

“6. So far as the contention of respondent that the petitioner is not willing to live with the respondent is concerned, the petitioner has specifically deposed in her statement as PW1 that the respondent is a drunkard person, who takes liquor in abundance. The petitioner also mentioned in her petition that she was turned out from the matrimonial home without any fault. PW 2 Rajmal, brother of the petitioner, also deposed that Abhey Ram turned out Panmeshwari from the matrimonial home about 3 years back, who used to beat Panmeshwari. Therefore, this is a sufficient ground for the petitioner to withdraw herself from the company of the respondent, because to live with a drunkard person causes mental cruelty to a woman, which is more dangerous than the physical cruelty meted out to a woman. Moreover, the witness PW 2 specifically deposed that the respondent used to beat his sister, therefore, Om Parkash’s case (supra) relied by respondent is not helpful to the respondent as it is not applicable on the facts and circumstances of the present case. Malkiyat Kaur v. Jaitnal, 1996 (3) RCR 652, relied on by the respondent is not applicable on the facts and circumstances of the present case, because in the mentioned authority Trial Court returned the findings to the effect that she cannot establish her desertion by her husband, whereas in the present case, the petitioner has proved her constructive desertion and physical desertion by the respondent from her matrimonial home. The proposition of law laid down in Smt. Kailash Wati’s case (supra) is not disputed at all, but I am afraid that this authority is not again helpful to the respondent, because the respondent turned out the petitioner from her matrimonial home and question of determining the matrimonial home does not arise in the present case. Therefore, it is established that the petitioner is entitled for maintenance allowance. Moreover, the respondent has not brought any document on the file to prove that the petitioner is able to maintain herself, rather it is admitted by the respondent that he owns VA acres of land, which certain yields minimum Rs. 15,000/- in a year. Moreover, the respondent is retired honorary Captain from the Military, who must be drawing pension not less than Rs. 2,000/- per month and as such the respondent must be earning more than Rs. 3,000/- per month.”

4. It is a cardinal principle of law that the statement of a witness is to be read as a whole. A stray line here or there cannot be stretched for the benefit of a ligitant. Smt. Panmeshwari while appearing as PW 1 has categorically stated that the petitioner had turned her out from the house two years back and has not sent any amount of maintenance etc. in spite of the fact that she is maintaining three children. This aspect of the evidence of respondent has also been corroborated by the brother of the lady. The learned Counsel for the petitioner has not been able to show that at any point of time the petitioner had sent any notice to the respondent showing his intention to rehabilitate the wife and the children. No amount etc. has been paid. In these circumstances, the wife does not want to live in the house of the petitioner and she could rightly say in the cross-examination that she does not want to go to the house of the petitioner keeping in view his past conduct. Therefore, no interference is called for. Dismissed.

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