SURINDER KAUR Vs. MANOHAR SINGH

JUDGEMENT

(1.) THESE two revision petitions are directed against an order dated 23.9 89 of the learned Metropolitan Magistrate, New Delhi by which she allowed maintenance under Section 125 of the Code of Criminal Procedure (Code for short) to the wife at the rate of Rs. 150/- per month from the date of the application till 22.9.89 and at the rate of Rs. 350/- per month from the date of the order. Criminal Revision 232/89 is by the wife because she feels that the maintenance is on lower side and prays that the amount may be enhanced to Rs. 500/- p.m. from the date of the application as also a sum of Rs. 10,000/- may be awarded to her as the litigation costs. On the other. hand the Criminal Revision 4/90 filed by the husband Manohar Singh seeks that in view of the fact that he had been paying Rs. 150/- per month as maintenance allowance to the wife, the impugned order may beset aside to the extent of directing the husband to pay Rs. 350/- month. From the relief claimed by the husband it appears that he is aggrieved only against the quantum of maintenance. For the sake of convenience, I would describe "the wife as petitioner and the husband as respondent. The petitioner filed an application under Section 125 of the Code on the allegations that he was married to the respondent on 9.5.76. No issue was born out of the wedlock. The respondent never treated her properly and his behaviour was always cruel for the reason that she had brought inadequate dowry. On 16.4.1977 the petitioner claimed to have been thrown out from the matrimonial home i. e. A-371, Chand Nagar, Chowkhandi. Her dowry articles worth Rs. 10,000/- were also retained by the respondent. She also "pressed her willingness to still live with the respondent. The salary of the respondent was stated to be Rs. 800/- per month. He also being the co-owner of the aforesaid house was alleged to be getting Rs. 200/- per mouth as rental income of his share.

(2.) THE respondent contested the application. By way of preliminary objection he said that in a petition under Section 9 of the Hindu Marriage Act in the court of Sh. P. L. Singla, the petitioner was proved to be employed with M/s. Bhurji Electricals, Industrial Area, Naraina at Rs. 225/- per month and thus the application was infructuous. Petitioner was alleged to be abnormal in behaviour and inefficient in performing her duty as a wife. She was also alleged to be suffering from some kind of female disease on account of which she avoided cohabitation causing mental and physical agony to the respondent. The allegations of demand of dowry and turning her out of the matrimonial home were denied. Rather she was alleged to. have left the house of her own accord on 5.4.1977 by deserting the respondent. At that time she, was ADJ also alleged to have taken away all articles, ornaments and clothes etc.

(3.) I have heard arguments advanced by learned counsel for the parties. It may be noted that the judgment of the Matrimonial Court is binding between the parties under Section 41 of the Indian Evidence Act, 1872. Learned counsel for the respondent, however, argued that the respondent did not seriously contest the divorce proceedings because an understanding was reached between the parties that the respondent shall go on paying Rs. 150/- per month to the petitioner and, therefore, no adverse inference may be drawn against the respondent. He has further submitted that a letter dated 9.4.77 written by the petitioner to him clearly showed that in fact she had gone from the matrimonial home happily and her case that she was thrown out forcibly is falsified by this letter. But it may be noted that when the petitioner was examined as a witness in her divorce petition, this letter was pot put to her. Learned counsel for the respondent argued that since this letter had already been filed in these proceedings, he could not confront her with this letter. This argument has no merit. A certified copy of this letter could be obtained and by summoning the file of the present proceedings, the letter could have been put to the petitioner. This course was not adopted. In the absence of this course having been adopted by the respondent the marriage between the parties was dissolved by a decree of divorce. A certified copy of that judgment is Ex. D4. It was clearly held in this judgment that from the start the respondent had been giving beating to the petitioner and her statement that he was dissatisfied with her dowry must be believed. It was also held that she had been turned out of the house after giving beating on 16.4.77 by the respondent. In view of this finding, it is not possible to accept the argument of the learned counsel for the respondent.