HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Revision No 681 of 2006
Mayaram Nishad
...Petitioners
versus
Jamuna Bai
...Respondents
! Shri K. A. Ansari, learned Senior Advocate with Shri
Ankoash Mishra, counsel for the Petitioner
^ Shri P.P.Sahu, learned counsel for the respondent
Honble Shri Dilip Raosaheb Deshmukh, J
Dated: 09/04/2009
: Judgment
CRIMINAL REVISION UNDER SECTION 397/401 OF THE CODE OF CRIMINAL PROCEDURE
O R D E R
(Passed on this 9th day of April, 2009)
This Criminal Revision by the petitioner/husband
is directed against the order dated 13.10.2006 passed
in Criminal Revision No. 194/2005 by the Additional
Sessions Judge, Bemetara, District Durg whereby in a
revision preferred by the respondent/wife while setting
aside the dismissal of the application under Section
125 Cr.P.C. of the respondent/wife herein by the
Judicial Magistrate First Class, Bemetara in
Miscellaneous Criminal Case No. 1/2004, the
petitioner/husband herein was ordered to pay
maintenance of Rs.1000/- per month to the respondent
herein from the date of application.
2. Admittedly, marriage between the petitioner/husband and the respondent/wife was
solemnized in the year 1982. Gauna ceremony took place
in 1983 and out of their marital wedlock, a son namely
Tukeshwar was born in 1984. It is also not in dispute
that since the year 1985, the respondent/wife is living
separately in her maternal home in village
Kongiyakhurd.
3. For the first time, the respondent/wife filed an
application under Section 125 of the Cr.P.C. on
23.10.2003 on the averment that a year after birth of
Tukeshwar, the petitioner/husband started harassing her
for bringing money from her father and finally
somewhere around the year 1985 she was turned out of
her matrimonial house by the petitioner herein. A year
after this, the respondent/wife went with her father
Hagroo and Kotwar Nemdas to the house of the petitioner
where after wrongly confining them inside a room the
petitioner forcibly got a document executed by them and
refused to keep the respondent. In the hope that in
future at some point of time, the petitioner would take
her back, the respondent did not lodge a report or take
any legal action even after leaving the matrimonial
home for 5 to 6 years. The respondent lived with her
father who maintained her till his death. Thereafter
Motim Bai, maternal aunt of the father of the
respondent, maintained her till her death 3 months
prior to the filing of the application under Section
125 of the Cr.P.C. The respondent had no means of
livelihood and was unable to maintain herself. The
petitioner refused to keep the respondent with him
despite efforts by the respondent on 12.10.2003 and
19.10.2003 whereupon application under Section 125
Cr.P.C. was filed on 23.10.2003. It was pleaded that
the petitioner herein was drawing salary of Rs.9,000/-
as a Teacher in Government service and had around about
12 acres of irrigated agricultural land and other
income from business. An amount of Rs.3,000/- as
monthly maintenance was claimed.
4. The petitioner herein denied the averment of the
respondent in toto and pleaded that after the birth of
Tukeshwar, the respondent/wife had suo moto gone to
live at her maternal home and had developed illicit
relationship with some person. Two years after the
birth of Tukeshwar, the respondent and the petitioner
had mutually agreed to live separately and on
02.10.1989 a document was executed evidencing that they
had mutually agreed to live separately and the marital
tie between them had come to an end. After this, the
respondent returned to Kongiyakhurd and was living
there of her own volition. The allegations of
execution of document dated 02.10.1989 per force after
wrongful confinement of the respondent, her father and
the Kotwar were false because had it been true, the
respondent wife would have reported the matter to
police or taken legal action. In sum and substance,
the petitioner herein contended that the marital tie
between them had come to an end on 02.10.1989, and
therefore, the respondent had ceased to be his wife.
It was also pleaded that the respondent/wife was able
to maintain herself as she cultivated her agricultural
land in village Kongiyakhurd.
5. Before the Judicial Magistrate First Class, the
respondent wife examined herself and Rampratap A.W.2
and her brother Samalia A.W.3. The petitioner herein
proved document Sahamati Patra dated 02.10.1989 Ex.D.1
and besides testifying also examined Bhaiyaram N.A.W.2.
The learned Judicial Magistrate First Class, Bemetara
recorded a finding that there was no evidence on record
to show that the respondent herein was leading an
immoral life. After appreciating oral evidence and the
Sahamati Patra Ex.D.1, a finding was recorded that the
two spouses were living separately by mutual consent
and therefore under Section 125 (4) of the Cr.P.C., the
respondent herein was not entitled to maintenance. No
finding was recorded that the marital tie between the
two spouses had come to an end w.e.f. 02.10.1989.
6. Being aggrieved, the respondent/wife preferred
Criminal Revision No. 194/2005 before the Additional
Sessions Judge, Bemetara. The learned Additional
Sessions Judge arrived at a different finding that by
Sahmati Patra Ex.D.1 dated 02.10.1989, the relationship
between the two spouses had come to an end by mutual
consent and the petitioner herein had also admitted
that he had remarried thereafter. On these premises,
it was held that as a divorced wife the respondent/wife
was entitled to maintenance till she remarried and was
unable to maintain herself. On such finding, the
learned Additional Sessions Judge set aside the order
dated 19.07.2005 passed by the Judicial Magistrate
First Class and ordered the petitioner herein to pay
monthly maintenance at the rate of Rs.1000/- to the
respondent/wife from the date of application.
7. Shri K. A. Ansari, learned Senior Counsel
appearing on behalf of the petitioner/husband argued
that the learned Additional Sessions Judge acted beyond
the scope of the revisional jurisdiction in re-
appreciating the evidence and coming to a conclusion
different than the one drawn by the Judicial Magistrate
First Class without holding that the finding recorded
by the J.M.F.C. was either contrary to law or perverse.
It was also argued that in her application under
Section 125 of the Cr.P.C., the respondent/wife did not
claim maintenance as a divorced wife of the petitioner.
The fact that from the year 1985 the respondent/wife
was living separately from her husband without any
demur substantiated that she was living separately from
her husband by mutual consent as evidenced by the
Sahmati Patra Ex.D.1. Unless the revisional Court came
in close quarters with the order passed by learned
J.M.F.C. and arrived at a conclusion that the said
order dated 19.07.2005 suffered from illegality or
perversity, the learned Additional Sessions Judge,
while allowing the revision, had acted beyond the scope
of revisional jurisdiction by setting aside the order
dated 19.07.2005 passed by the Judicial Magistrate
First Class, Bemetra by arriving at a different finding
on the material on record.
8. On the other hand, Shri P. P. Sahu, learned
counsel for the respondent/wife argued in support of
the impugned order and urged that if the pleading by
the petitioner/husband and the document Ex.D.1 (Sahmati
Patra) were to be accepted, the respondent/wife was, as
a divorced wife, entitled to be maintained by the
petitioner/husband till she remarried. Reliance was
placed on Vanamala (Smt.) v. Shri H.M. Ranganatha
Bhatta, 1995 (II) M.P.W.N. 162, Harish Raisen v. Smt.
Kavitaba Raisen, 2007 (4) M.P.L.J. 137 and Rohtash
Singh v. Smt. Ramendri and others, AIR 2000 SC 952.
9. Having considered the rival submissions, I have
perused the impugned order dated 13.10.2006 passed by
the Additional Sessions Judge, Bemetara and the order
dated 19.07.2005 passed by Judicial Magistrate First
Class, Bemetara and also the record. In paragraphs 8
and 9 of the impugned order, the learned Additional
Sessions Judge did not find any illegality in the order
dated 19.07.2005 passed by the Judicial Magistrate
First Class. However, on perusal of Sahmati Patra
Ex.D.1 and placing reliance on a judgment rendered in
Vanamala (Smt.) v. Shri H.M. Ranganatha Bhatta (supra),
it arrived at the conclusion that living separately by
mutual consent does not come in the way of a divorced
wife to receive maintenance till she re-married. I
shall now examine whether the learned Additional
Sessions Judge was justified in taking the above view?
The respondent/wife did not claim maintenance as a
divorced wife. The petitioner denied the entitlement
of the respondent/wife to receive maintenance on the
ground that the marital tie between the parties was
snapped on 02.10.1989 when Sahmati Patra Ex.D.1 was
executed by the parties. Burden of proving this was on
the petitioner/husband. A perusal of the testimony of
the petitioner/husband shows that at no place did he
mention that the relationship between him and the
respondent/wife had come to an end on execution of the
document Ex.D.1. Although the respondent/wife admitted
that Ex.D.1 bears her thumb impression as also the
signature of her father and the Kotwar yet it does not
transpire from the testimony of the petitioner that the
respondent/wife had affixed her thumb impression on
document Ex.D.1 after it was read over to her and
admitted to be correct by her. The petitioner –
Mayaram did not assert anywhere in his testimony that
as per custom prevalent the relationship between him
and the respondent/wife had come to an end. All that
he stated in paragraph 5 was that after the execution
of the document Ex.D.1 both spouses were living
separately. In this view of the matter, since the
respondent/wife did not claim maintenance as a divorced
wife and the evidence of the petitioner did not show
that the relationship of husband and wife had ended on
02.10.1989 or that the respondent/wife had affixed her
thumb impression on document Ex.D.1 after the same was
read over to and admitted by her to be correct, the
finding of entitlement of the respondent/wife to
receive maintenance as a divorced wife of the
petitioner herein by the learned Additional Sessions
Judge is contrary to law and facts. I am of the
considered opinion that the Sahamati Patra Ex.D.1 does
not break the marital tie between the parties and could
at the most be construed as showing mutual consent to
live separately, and therefore, learned Additional
Sessions Judge was not justified in awarding
maintenance to the respondent/wife as a divorced wife
by taking a view different than the one taken by the
learned J.M.F.C.
10. The case law relied on by Shri P.P.Sahu, learned
counsel for the respondent/wife does not help the
respondent in any manner because in the cases cited by
him a decree for divorce between the two spouses had
been passed. However, in the present case, divorce has
not been effected between the parties. The
respondent/wife also did not claim maintenance as a
divorced wife. The petitioner did not utter a word in
his testimony that the marital tie between him and the
respondent was snapped on execution of document Ex.D.1.
All that he stated was that they were living
separately. Therefore, the Sahamati Patra Ex.D.1 does
not snap the marital tie between the petitioner and the
respondent.
11. The only question that now remains for
consideration is whether learned Judicial Magistrate
First Class, Bemetara was justified in holding that
under Section 125 (4) of the Cr.P.C. the
respondent/wife was disentitled to maintenance on the
ground that she was living separately from her husband
by mutual consent. Admittedly, the marriage between
two spouses was solemnized in the year 1982. Gauna was
performed in 1983. A child was born in 1984 and
thereafter in 1985 the respondent separated from her
husband. The document Ex.D.1 dated 02.10.1989 does
show that the petitioner and the respondents were
living separately by mutual consent. The pleadings of
the respondent/wife and the evidence to show that the
document Ex.D.1 dated 02.10.1989 was got executed per
force is wholly unworthy of any credit because had it
been true the respondent/wife would not have hesitated
to lodge a police report or to take any other legal
action against the husband. Shri P.P.Sahu, learned
counsel for the respondent/wife admitted that the
respondent did not ever take any step for restitution
of conjugal rights. Thus, the document Ex.D.1 clearly
evidences that the respondent/wife was living
separately from her husband by mutual consent. The
fact that after separating from her husband in the year
1985, the respondent/wife did not file any application
for receiving maintenance from her husband for as many
as 18 years also substantiates that during all this
period, the respondent/wife was living separately from
her husband by mutual consent. The finding recorded by
the J.M.F.C. that the respondent/wife and the
petitioner were living separately by mutual consent,
and therefore, under sub-section (4) of Section 125 of
the Cr.P.C. the respondent/wife was not entitled to
receive maintenance having been founded on proper
appreciation of evidence, oral as also documentary,
cannot be faulted with. Even the learned Additional
Sessions Judge did not find any illegality in the said
finding and erred in taking a different view by holding
that the respondent/wife was entitled to maintenance as
a divorced wife. The Additional Sessions Judge had
thus clearly overstepped the jurisdiction vested in it
by law while exercising revisional jurisdiction.
12. In this view of the matter, the revision deserves
to be and is accordingly allowed. The impugned order
dated 13.10.2006 passed by the Additional Sessions
Judge is set aside while affirming the order dated
19.07.2005 passed by the Judicial Magistrate First
Class, Bemetara.
JUDGE