JUDGMENT
Garg, J.
1. This criminal revision petition has been filed by the petitioner Rakesh (hereinafter referred to as non- applicant-husband) against the order dated
4.10.2000 passed by the learned Judge, Family Court, Jodhpur in Criminal Case No. 163/94, by which he accepted the application filed by the respondent No. 1 Smt. Nandu (hereinafter referred to as the applicant No. 1-wife) and respondent No. 2 Nand Kishore (hereinafter referred to as the applicant No. 2-son of applicant No. 1 and non-applican[) under Section 125 Cr.P.C. and ordered that non-appticant-husband would pay Rs. 500/-p.m. as maintenance to applicant No.l-wife and Rs. 500/- p.m. as maintenance lo applicant No. 2 with effect from 15.12.1994.
2. It arises in the following circumstances:-
The applicant No.l Smt. Nandu, wife of the non-applicant Rakesh and applicant No. 2 Nand Kishore, son of both applicant No. 1 Smt. Nandu and non-applicant Rakesh Tiled an application under Section 125 Cr.P.C. in the Family Court, Jodhpur on 15.12.1994 stating inter-alia thai applicant No.l Smt. Nandu was married with non- applicant Rakesh eight years back and after one year of the marriage, a son was born, whose name is Nand Kishore (applicant No. 2. It was further stated in the application that thereafter, non-applicant-husband and other members of his family started harassing applicant N6.1 wife for not bringing sufficient dowry and demanded Rs.25,000/- and when she did not arrange Rs.25,000/-, she was beaten and they tried to kill her also and they also threatened that in case their demands were not fulfilled, they would arrange marriage of non-applicant husband Rakesh with another lady. It was further stated in the application that thereafter, since it was not possible for them to live in the house of non-applicant husband, therefore, applicant No. 1 wife alongwith her child Nand Kishore, applicant No. 2 came to her parents house. It was further stated in the application that even her father-in-law used to have evil eye on her. Not only this, the non-applicant husband had re-married with another lady before two years back and thus, he is neglecting the applicants and not maintaining them. It was further stated in the application that monthly income of the non-applicant husband was near about Rs. 6000/-p.m. and thus, applicants demanded Rs. 1000/- p.m. as maintenance for both of them.
On behalf of the non-applicant husband, a reply was filed in the Family Court, Jodhpur on 10.3.1995 by his father Pratap and in that reply, all the allegations, which were levelled by the applicant No.l wife, have been denied and it was further stated in the reply that she made a criminal case against them for the offence under Sections 498A and 406 IPC falsely. It was further stated in the reply that on 27.11.1990, an agreement was executed between the non-applicant husband and applicant No. 1 wife and since then both were living separately and through that agreement, a divorce was given to applicant No. 1 wife by non- applicant husband. Not only this, the non-applicant husband is suffering from the menial disease and thus, he is not in a position to work. Hence, it was prayed that the application filed by the applicant under Section 125 Cr.P.C. be rejected.
During trial before the Family Court, Jodhpur, four witnesses were produced on behalf of the applicant No. 1 wife and two witnesses were produced on behalf of the non-applicant husband.
After hearing both the parties, the learned Judge, Family Court, Jodhpur vide order dated 4.10.2000 allowed the application filed under Section 125 Cr.P.C. by the applicant No. 1 wife Smt. Nandu and her son Nand Kishore, applicant No. 2 and ordered that non- applicant husband would pay Rs. 500/- p.m. as maintenance to applicant No. 1 wife Smt. Nandu and Rs. 500/- p.m. as maintenance to applicant No. 2 Nand Kishore, son of both applicant No.l and non-applicant from 15.12.1994 and thus, non-applicant husband was directed to pay Rs. 1000/- p.m. as maintenance to both the applicants holding inter-alia:-
1. That so-called agreement Ex.A/1, which is alleged to have been executed on 27.11.1990 cannot be looked into as original has not been produced and photocopy is not enough.
2. That apart from this, after coming into force of the Hindu Marriage Act, 1955, the said agreement is of no value.
3. That since husband has re-married, the problem of applicant No. 1 wife has further increased.
4. That from the medical certificate Ex.A/2, which has not been got proved by the doctor, the fact that non-applicant husband was suffering from mental disease of schizophrenia cannot be held to be proved.
5. Thai the non-applicant husband is earning Rs. 100-150 daily by doing labour work.
6. That from the second marriage of non-applicant husband, two children were bom and this fact also shows that applicant No. 1 wife was being neglected.
In the above circumstances, the learned Judge, Family Court allowed the application filed by the applicants and granted maintenance in the manner as indicated above.
Aggrieved from the said order dated 4.10.2000 passed by the learned Judge, Family Court, Jodhpur, this revision petition was been filed by the non-applicant husband.
3. In this revision petition, the following submissions have been made by the learned counsel appearing for the petitioner- non-applicant husband:-
1. That the learned Judge, Family Court has committed an error of law in deciding the case on the technicalities of the Evidence Act and thus, he over-looked Section 14 of the Family Courts Act, 1984 (hereinafter referred to as ‘the Act of 1984’.
2. That the learned Judge, Family Court has failed to appreciate that as per the provisions of Section 125(4) Cr.P.C., the application filed by the applicants was not even maintainable, as both of them were living separately through mutual agreement Ex.A/1, which was executed on 27.11.1990 between both the parties.
3. That execution of agreement dated Ex.A/1 dated 27.11,1990 is well proved from the evidence of the applicant No. 1 wife, as PW4 Narsingh Lal has clearly admitted its execution.
4. That when the photostat copy of the certificate of ailment has been produced and marked, the case that non-applicant husband was suffering from mental disease should have been held to be proved.
5. That learned Judge, Family Court has given wrong finding that applicant No.l wife was not doing any job, though her father Dhuda Ram, PW3 has admitted that she is earning Rs. 20-25 daily by doing labour work.
Hence, it is prayed that this revision petition be allowed and the order dated 4.10.2000 passed by the learned Judge, Family Court, Jodhpur be set aside and the application filed by the applicants under Section 125 Cr.P.C. be rejected.
4. On the contrary, the learned counsel appearing for the applicants-respondents has argued that the impugned order passed by the learned Judge, Family Court, Jodhpur is based on correct appreciation of facts and law and does not suffer from any infirmity and illegality and thus, no interference is called for in this revision petition and the same be dismissed.
5. I have heard the learned counsel appearing for both the parties and gone through the record of the case.
6. The learned Judge, Family Court while allowing the application under Section 125 Cr.P.C. filed by both the applicants, has held in para 10 of his order that execution of agreement Ex. A/1 cannot be held to be proved, as original has not been produced
and similarly, the prescription and certificate of the doctor cannot be held to be proved in absence of production of doctor concerned, who issued it.
7. The pertinent question is whether the above observations of the learned Judge, Family Court are correct one or not.
8. Section 14 of the Family Courts Act, 1984 reads as under:-
“Section-14. A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence
Act, 1872 (1 to 1872.”
9. Section 14 of the Act of 1984, which empowers the Family Court to receive as evidence any report, statement, document, information or matter for effectively deciding the dispute before it, frees it from the shackles of rigorous rules of evidence as a relevancy or admissibility of evidence under the Indian Evidence Act, 1872, by which ordinary civil courts are bound.
10. The Family Court should not succumb to nicities technicalities and mystic maybes, while recording evidence and admitting documents etc.
11. Keeping the above Section 14 of the Act of 1984 in mind, the observations made by the learned Judge, Family Court that the documents should have been proved by producing the original are to be. ignored and though the photo stat copy of the agreement is produced, but its execution, as would be revealed from the evidence produced by the applicant No. I wife herself, is well proved.
12. PW-3 Dhuda Ram, father of applicant No.1 Smt. Nandu, has admitted in cross-examination that a compromise took place between both the parties, but that was not found to be effective.
13. Similarly, PW-3 Narsingh Lal, who has been produced on behalf of the applicant No. 1 wife, has also admitted that a compromise took place between both the parties and according to that compromise, both applicant No. 1 wife and non-applicant husband were separated, but he cannot say whether it has been proved to be effective or not.
14. Thus; so far as the execution of agreement Ex.A/1 dated 27.11.1990 is concerned, it is well proved from the evidence of the applicant No. 1 wife herself and apart from that, DW-1 Pratap, father-in-law of the applicant No. 1 wife, has proved it through his evidence and in these circumstances, the findings of the learned Judge, Family Court that simply because it was photo stat copy it carries no weight, are.not appreciable one.
15. Thus, it is held that agreement Ex.A/1 was executed between the applicant No. 1 wife Smt. Nandu and non-applicant husband- Rakesh on 27.11.1990.
Contents of agreement Ex.A/1 dated 27.11.1990
16. From perusing the agreement Ex.A/1 dated 27.11.1990, it appears:-
1. That applicant No. 1 wife Smt. Nandu Divorced non- applicant husband Rakesh and she has taken all goods and for future, they would not be treated as wife and husband.
2. That so far as son Nand Kishore applicant No. 2 is concerned, he will remain in the custody of the applicant No. 1 wife.
3. That both applicant No. 1 wife Sml. Nandu and non- applicant husband Rakesh are free to re-marry again and they have put an end to their marital tie.
17. The next question that arises for consideration is what is the effect of this agreement Ex.A/1, which was executed between both the parlies on 27.11.1990.
18. It has been argued by the learned counsel appearing for the petitioner-non-applicant husband that since an agreement Ex.A/1 was executed between the applicant No. 1 wife and non-applicant husband on 27.11.1990 and since then both were living separately and it was executed by mutual consent and as per one of the terms of the said agreement Ex.A/1, she was divorced, therefore, in view of Clause (4) of Section 125 Cr.P.C, the applicant No. 1 wife is not entitled lo any maintenance and the order of the learned Judge, Family Court, Jodhpur granting maintenance is liable to be set aside on this ground alone.
19. To appreciate the above contention, Section 125(4) Cr.P.C. is reproduced here:-“Order for maintenance of wives, children and parents.
125(1)……
2….
3…..
4) No wife shall be entitled to receive an allowance from her husband under Ihis 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.
20. Before something is said about the words ‘mutual consent’ occurring in the above clause, some thing should be said about the object of Section 125 Cr.P.C.
21. Section 125 Cr.P.C. is the measure of social justice and is specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. Section 125 Cr.P.C. is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter (o the deserted wife. It is a measure of social justice intended to protect women and children.
22. Section 125 Cr.P.C. does not offend Article 14 of the Constitution because it applies lo the class of neglected wife, children and parents.
Mutual consent
23. Mutual consent means a consent on the part of the husband and wife to live apart no matter what the circumstances may be. Living separately by mutual consent should be the outcome of the desire of both parties, independently reached by both of them; it should not be the result of circumstances brought about by one of them.
24. Sub-section (4) of Section 125 of the Code of Criminal Procedure contemplates three contingencies under which the wife shall not be entitled lo maintenance from her husband under Sub-section (1. One of the contingencies mentioned is where ‘they are living separately by mutual consent’, ‘they’ refer to wife and husband mentioned earlier in Sub-section (4. When two persons are referred lo as wife and husband, it must necessarily follow that they are being referred to as parties to a subsisting marriage. The attract Sub-section (4) they must live separately by mutual consent while the marital tie is subsisting. Such mutual consent must be the outcome of the desire of both spouses, qua spouses, lo reside separately. Normally a husband is liable to maintain his wife, whether she resides with him or elsewhere. If her ” residence elsewhere is on account of her refusal to live with him and discharge her marital obligations, his obligation to maintain her ceases. But if her refusal to live with him is justifiable, his liability to maintain her will not cease.
25. To attract Sub-section (4), their separate residence and the basis of their separate residence viz. mutual consent, must have been on the supposition and with the consciousness that they continue to be spouses and but for the mutual consent they are bound by mutual rights and obligations.
26. Where they are lawfully divorced, Sub-section (4) will not come into operation at all, since a divorced wife does not reside separately by mutual consent but resides so, as a consequence of her status as a divorcee. Where the parties, under
the supposition that they are no longer husband and wife as they have put an end to their marital tie, reside separately or consent to reside separately, such residence or consent cannot be in derogation of their mutual rights and obligations as spouses. In such a case their willingness to reside separately is only a reflection or consequence of their belief that they are no longer husband and wife. If the divorce is shown to be not valid in law, their willingness or consent to reside separately on the basis of a de facto divorce, cannot be treated as mutual consent for separate residence as spouses.
27. In the present case, applicant No. 1 wife Smt. Nandu and non-applicant husband Rakesh have put an end to their marital lie and claimed that they have been divorced, but so far as the question that they have been legally divorced or not, there
is no dispute on the point that the agreement Ex.A/1 is not a valid proof for the purpose of proving the facts of divorce. Therefore, by agreement Ex.A/1 dated 27.11.1990, it cannot be termed that both non-applicant husband and applicant No. 1 wife have been divorced, meaning thereby their marriage is still subsisting.
28. After going through the agreement Ex.A/1 on the face it appears that both applicant No. 1 wife and non-applicant husband had divorced each other, but their separate residence subsequent to execution of agreement Ex.A/1 cannot be treated as a separate residence by mutual consent with the consciousness that they still continue to be spouses. Consciousness of a subsisting marriage is the essential basis for the ineligibility contemplated under the particular part of Sub-section (4) of Section 125 Cr.P.C. Since such consciousness is lacking in this case, therefore, applicant No. 1 Smt. Nandu does not become ineligible by virtue of Sub-section (4) of Section 125 Cr.P.C. This is one of the aspects of the matter.
29. The facts of the present case revealed that non-applicant husband, after execution of agreemenl Ex.A/1 dated 27.11.1990, has contracted the second marriage and has also produced two children and by doing so, he has virtually put to an end his first marriage and in these circumstances, on principle the applicant No. 1 wife is entitled to claim maintenance and will continue to do so provided she fulfils two more condilions:-
(1) That she does not marry again; and
(2) That she is unable to maintain herself.
30. In coming to the above conclusion, reference can be made on the decision of the Hon’ble Supreme Court in. Gurmit Kaur v. Surjit Singh (1), where the Hon’ble Supreme Court, in the similar facts and circumstances, allowed maintenance to the
wife.
31. There is no dispute on the point that the non-applicant No. 1 wife has not re-married, after the execution of agreement Ex.A/1 dated 27.11.1990. Thus, the has fulfilled one of the conditions which entitles her to maintenance.
32. The second condition is that she is unable to maintain herself. To decide this point, the evidence led by the parties has to be looked into.
33. The applicant No. 1 Smt. Nandu, in her statement, has stated that she does not work as she is an illiterate lady and her husband non-applicant Rakesh does the work of labour and earns daily Rs. 100-150.
34. PW-3 Dhuda Ram, father of the applicant No. 1 Smt. Nandu, has stated that her daughter Smt. Nandu earns Rs. 20-25 daily by doing labour work.
35. Thus, there is evidence that applicanl No. 1 Smt. Nandu earns Rs. 20-25 daily by doing labour work and therefore, to say that she earns nothing is wrong. From the evidence on record, it also transpires that both applicant No. 1 wife and non-applicant husband do the labour work and they are not in employment of any Department. From this point of view also, the status of non- applicant husband is not much above in comparison to his wife applicant No. 1, as both are doing the job of labour.
The case of applicant No. 1 Smt. Nandu-wife
36. So far as the case of applicant No. 1 wife is concerned, looking to the facts and circumslances just discussed above, she should not be held entitled to maintenance from her husband-non-applicant on the ground mat she also earns by doing labour work and thus, she is able to maintain herself. In coming to the conclusion that applicant No. 1 wife is not emitted to maintenance from her husband non-applicant, the principles of equity, justice and good conscience have been kept in mind.
37. For the reasons slated above, the order of the learned Judge, Family Court, Jodhpur dated 4.10.2000 granting maintenance to the applicant No. 1 wife, cannot be sustained and the same is liable to be set aside.
The case of applicant No. 2 Nand Kishore, son of applicant No. 1 and non-applicant.
38. It may be stated here that the fact that non-applicant husband and applicant No. 1 wife are living separately by mutual consent even it would not deprive the children living with the mother to claim maintenance.
39. From this point of view, so far as the claim of maintenance by non-applicant No. 2 Nand Kishore is concerned, the order passed by the learned Judge, Family Court granting maintenance to him, is liable to be confirmed.
40. So far as the argument that non-applicant husband is suffering from the mental disease is concerned, by producing simple prescriptions for treatment, a man does not become a patient of mental disease.
41. It may be stated here that the law presumes every person of the age of discretion to be sane unless the contrary is proved and even a person, who is suffering from mental disease, has lucid intervals. Thus, every person presumes to be sane till the contrary is established.
42. In the present case, the non-applicant husband might be suffering from mental disease, but it does not mean that he is a man of permanent unsoundness of mind. A person, who has remarried and produced two children may be called a person of disturbed mind due to various reasons for example poverty, frustration, desertion mental agony etc., but all these factors do not lead to the conclusion that he is a man of permanent unsoundness of mind. The partial mental disturbance may be due to state of desparation. In the modern society, such diseases are common, but they do not make man or woman of permanent unsoundness of mind.
43. Thus, on the ground of suffering from mental disease, non-applicant husband, in the present case, cannot be immuned from maintaining either his wife or son. Thus, this argument is rejected.
For the reasons staled above, this revision petition filed by non-applicant husband Rakesh is partly allowed in the manner that the impugned order dated 4.10.2000 passed by the learned Judge. Family Court, Jodhpur granting Rs. 500/- p.m. as maintenance to applicant No. 1- wife Smt. Nandu is set aside, but the order dated 4.10.2000 passed by the learned Judge, Family Court, Jodhpur granting Rs. 500/-p.m. as maintenance to applicant No. 2 Nand Kishore, son of non-applicant and applicant No. 1 from 15.12.1994 is maintained. The other conditions relating to grant of maintenance to applicant No. 2 Nand Kishore, which are embodied in the impugned order of the learned Judge, Family Court, Jodhpur dated 4.10.2000, are also maintained. Thus, this revision petition again applicant No. 2 Nand Kishore stands rejected.