JHULABAI Vs. RAGHUNANDAN RAM KANNOJE

JUDGEMENT

(1.) HEARD . This is a criminal revision preferred by the applicant, wife of the non- applicant, whose application for maintenance under Section 125 of the Cr.P.C. has been dismissed by the Judicial Magistrate, First Class (JMFC), Mahasamund by the impugned order dated 11-01-1994. It is not disputed that the applicant is a married wife of the non-applicant and marriage was solemnized 10 to 11 years prior to filing of the petition and. that the applicant had delivered a child who has died and she is residing in her paternal house at present. The allegations of the applicant are that she was being ill treated by the non-applicant and his relatives for not bearing child and the brother of the non-applicant tried to outrage her modesty in the year 1989. When this incident was complained to the non-applicant, he assaulted and ousted her and since then she is somehow leading her life with her sister in village Labharakala. The non-applicant denied any maintenance to the applicant apd had married with one Firantin Bai and is residing with her. Accordingly, the maintenance of Rs. 500/- per month was prayed.

(2.) IN reply, the non-applicant has denied the allegations made against him and stated that the applicant is voluntarily residing separately and she herself left her matrimonial house on 03-12-1989 on some trivial dispute and lodged a false report against his brother namely Medhu Ram under Section 354 of the IPC and since then she is residing in her parent's house at village Lachkera. It is further stated that all his efforts to bring the applicant back have failed and even in the Panchayat, the non-applicant proposed that he is ready to live with the applicant separately as he is not able to pay monthly maintenance to her, which was refused by the applicant. Learned Magistrate in para-13 of the impugned order has recorded a finding that though from the evidence it is established that the non-applicant has married second wife but this was done after the applicant left him and that the applicant herself wanted to live separately right from beginning. In para-12 of the impugned order it is recorded that the non-applicant was residing with his wife jointly along with his parents and brother and the applicant left her matrimonial house because of ill treatment by the brother of the non-applicant. Relying upon the statement of the non-applicant that in the Panchayat, he proposed to take back the applicant and live separately from his parents and that the said proposal was refused by the applicant, the Court below arrived to the conclusion that the applicant is residing separately from the non-applicant without any just and sufficient cause. The Court below has further held in para-14 of the impugned order that the applicant is able to earn her livelihood and thus she is able to maintain herself and for these reasons, she is not entitled for maintenance. Thus, the Court below rejected the application of the applicant on the above grounds. Learned counsel for the applicant submits that the findings of the Court below is contrary to the material available on record as the applicant and her witnesses have categorically stated in their statements that she was being ill treated by the non-applicant and his brother. He further submits that the application of the applicant was rejected illegally because the non-applicant is able to maintain the applicant as he has agricultural land and he has married second wife even during subsistence of marriage with the applicant. He further submits that the non-applicant has admitted that his family has four acres of land in the name of his father and he also possesses 2-3 acres of land for sharecropping. However, the non-applicant has not filed the land records, so adverse ought to have been drawn against the non-applicant and the finding of the Court below that the applicant was living separately without any just and sufficient cause and that the non-applicant was ready and willing to take back the applicant is also perverse findings particularly in the light of the fact that the non-applicant has married second wife without divorcing the applicant.

(3.) LEARNED Court below relying upon the acquittal of brother of the non- applicant and further recording a finding that the above ill treatment was given by brother of the non-applicant and not by the non-applicant himself, held that the non-applicant could not have been held responsible for separate living of the applicant, which is erroneous particularly when the non-applicant is residing with his family along with his wife and in such circumstances it is the duty of the non-applicant to protect his wife from ill treatment meted out to her even by his family members. Apart from this the applicant has alleged that after this incident she was ousted from her matrimonial house by the non-applicant. Thus, in the light of the admitted and proved facts that the non-applicant has married second wife during subsistence of his marriage with the applicant, the applicant was entitled for separate living and maintenance from the non-applicant.