Judgment - Section 125 - Maintenance - Maintenance Order Set Aside

Court: Orissa High Court

Bench: JUSTICE R.N. Biswal

Babuli @ Rajkishore Rana Vs. Prasanti @ Purnamasi Rana & Anr. On 7 July 2007

Law Point:
No specific instances of ill-treatment to Wife by Husband. No evidence to show that Wife apprehended danger to her life if she would live with her husband. Maintenance order against Husband liable to be set aside — However, maintenance in favour of Son maintained.

JUDGEMENT

1. Heard argument from the learned Counsel for both the parties and the judgment is delivered as follows:

2. Petitioner challenges the order dated 20.11.2004 passed by the Additional District and Sessions Judge, Nayagarh in Criminal Revision No. 16 of 2002 wherein he dismissed the revision and only modified the order dated 17.5.2002 passed by the learned J.M.F.C. Ranpur in Criminal Misc. Case No. 4 of 2000. As per the case of the opposite parties, petitioner married opposite party No. 1 on 1.3.1990 in village Sinduria in accordance with the Hindu rites and their Caste custom. At the time of marriage, on demand of the petitioner, the father of opposite party No. l gave Rs. 5,000 in cash and one gold ring towards dowry. After the marriage the couple led a happy conjugal life for about two years and were blessed with opposite party No. 2 whereafter skirmishes erupted between the couple, since father of opposite party No. l could not fulfil further demand of Rs. 10,000 towards dowry made by the petitioner. Opposite party No. 1 was harassed and tortured in many a way. Ultimately on 8.7.1999 the petitioner drove her out and since then she along with opposite party No. 2 has been staying at her parents house in a miserable condition without any source of income. It is the further case of opposite parties that the petitioner works as daily labourer and gets Rs. 50 per day towards wage and that he has also some landed properties. Even though opposite parties have no means to maintain themselves, the petitioner did not pay a single pie to either of the opposite parties and refused to maintain them. So without finding any alternative they filed a petition under Section 125 of Cr.P.C. before the learned J.M.F.C., Ranpur claiming maintenance of Rs. 500 and Rs. 300 respectively, per month, which was registered as Criminal Misc. Case No. 4 of 2000. The petitioner admitted that he led opposite party No. 1 to the altar and opposite party No. 2 was born out of their wedlock, but he refused the allegations made against him. As per his objection opposite party No. 1 insisted him to go and live with her in her father’s house, and when he did not yield to it, she left the matrimonial home with opposite party No. 2 and lived in her parental house and did not return despite pleader notice issued vide Ext. A, requesting her to join his company. It is his further case that opposite party No. 1 is an able-bodied woman and earns Rs. 600 per month by preparing BADI, PAPAD, etc. and as such she is capable of maintaining herself and opposite party No. 2. Furthermore, it is the case of the petitioner that he is ready and willing to maintain the opposite parties, if they would live with him.

3. In order to establish their case opposite parties examined two witnesses including opposite party No. 1 as against four witnesses examined on behalf of the petitioner. After assessing the evidence both oral and documentary on record, the learned JMFC, Ranpur awarded a sum of Rs. 300 and Rs. 200 to opposite parties respectively per month as maintenance to be paid by the petitioner.

4. Challenging the said order, the petitioner filed Criminal Revision bearing No. 16 of 2002 before the Additional District and Sessions Judge, Nayagarh, who after hearing learned Counsel for the parties, modified the quantum of maintenance allowance from Rs. 300 to Rs. 150 and Rs. 200 to Rs. 75 as awarded by the Trial Court and dismissed the Revision. Being aggrieved by that order the petitioner has filed the present CRLMC under Section 482 of Cr.P.C.

5. Learned Counsel for the petitioner submits that when the petitioner is ready and willing to maintain the opposite parties, if they live with him and without any sufficient reason they refuse to do so, the revisional Court ought to have allowed the Revision. On the other hand, learned Counsel appearing for the opposite parties contends that there is evidence on record to show that petitioner tortured and harassed the opposite party No. 1 in many a way. So there is sufficient reason for opposite parties to live separate from petitioner and claim maintenance and the revisional Court has rightly dismissed the Revision. This Court while dealing with a case of the present nature under Section 482 of Cr.P.C. should not reassess the evidence on record, but in appropriate cases it can go through the evidence. In view of the submission made by learned Counsel for the opposite parties, I went through the evidence on record. While being examined before the Trial Court P.W. (opposite party No. 1) stated that petitioner ill-treated her both mentally and physically, but no specific instance of such mental or physical ill-treatment has been deposed to by her. There is also no evidence to show that opposite party No. 1 apprehends danger to her life if she would live with her husband. Petitioner issued a notice dated 21.1.1992 through his Counsel under Ext. A asking the opposite party No. 1 to join him but to no effect. Under such circumstances, I am of the considered opinion that the revisional Court committed manifest error in law in awarding maintenance to opposite party No. 1. If the said order is allowed to be retained it would lead to miscarriage of justice.

6. So, the orders passed by the Revisional Court as well as the Trial Court awarding maintenance in favour of the opposite party No. 1 are set aside. However, the maintenance awarded in favour of opposite party No. 2 by the revisional Court is hereby confirmed. In the year 2000 when the petition under Section 125 of Cr.P.C. was filed, opposite party No. 2 was aged 7 years and as such her present age is about 14 years. The maintenance allowance of Rs. 75 per month as awarded in her favour may not be sufficient for her subsistence at present. So, if so advised, she may file a petition before the appropriate forum claiming enhancement of the maintenance allowance.

The CRLMC is allowed in part.

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