HYMAKRISHNADAS Vs. M KRISHNADAS

JUDGEMENT

(1.) The simple question for consideration in this revision is whether a lady who is claiming separate maintenance from her husband under section 125 of the Code of Criminal Procedure is justified in doing so. She filed M.C. 71 of 1981 before the Judicial Magistrate of the First Class, Cannanore, claiming maintenance for herself and her minor child. The respondent resisted the claim on the ground that she has no justifiable reason for residing separate. He also made an offer to maintain her provided she comes and lives with him. The Magistrate allowed the petition and ordered maintenance to the wife and child at the monthly rates of Rs. 350- and 200/- respectively. The award of maintenance in favour of the wife alone was challenged by the respondent in Cr1. R.P. 51 of 1983, before the Sessions Judge, Tellicherry. The revision was allowed and the order for maintenance in favour of the wife was set aside. The revision by the petitioner arises from that order.

(2.) The only controversy between the parties before the Magistrate, before the Sessions Judge in revision and before this Court were whether the petitioner is having just grounds to live separate and whether she is entitled to get separate maintenance. The order of the Sessions Judge shows that quantum of maintenance was not at all a problem for the respondent husband. Before me also that was his attitude. The Magistrate for valid reasons, which I shall consider later, accepted the evidence of the petitioner in preference to that of the respondent and found that the petitioner is entitled to separate maintenance. Though the petitioner examined one witness as P. W. 2 that was for an entirely different matter. On the question of right to separate maintenance and the supporting reasons, the parties alone were examined. The Sessions Judge disagreed with the findings of the Magistrate on the ground that these findings were only illegal inferences unsupported by any evidence or reason. To quote the words of the Sessions Judge himself, TIJ do not think, there are any circumstances in which such an inference could have, been drawn by the trial court. The law does not permit such inference to be drawil. When the law does not permit an inference to be drawn drawing the inference will be illegal. The inference drawn will also be illegal. In this case, the inference drawn is illegal. I should therefore interfere in revision. The Sessions Judge gave particular emphasis to burden of proof. On that basis it was found that there was only oath against oath and counter assertions against assertions and proceeded to dispose of the revision, taking some other aspects also into consideration, but giving importance to burden of proof alone. The approach of the Sessions Judge was as if the deposition of a party by itself will not amount to evidence. That approach on the part of the Magistrate make it necessary for me to deal with burden of proof, how it could be discharged and how it could be taken as discharged for the purpose of entering findings, with particular concentrations of proceedings under section 125.

(3.) Burden of proving a particular controversial fact is considered to be that of the party, who would fail if no evidence is adduced by either side. Normally burden of proof may go side by side with legal presumptions including those under section 114 of the Evidence Act. The degree and applicability may vary from case to case depending upon their nature, the circumstances involved, the facts of the case and the degree of burden of proof required. For example in a criminal case, there is the presumption of innocence in favour of an accused and burden of proof is on the prosecution. The degree of proof required is beyond reasonable doubt. If that burden is not discharged the prosecution will fail. When an accused pleads an exception, it is for him to prove it. In the absence of proof, he may fail in that plea. But his burden may not be so heavy as that of the prosecution. Likewise, there is the presumption that possession follows title. If a plea comes against such a presumption, the burden will be on the person putting forward such a plea to prove it. There may be presumptions and burden of proof provided by particular Status. In such cases, the provision of the State will decide the burden of proof and their standards. Degree of proof required in criminal cases and civil cases are not alike. Preponderance of probability may be sufficient in a civil case, but the standard of proof will be different in a criminal case. Proof could be had in the form of admissions, circumstances, positive proof, presumptions of law etc. The question whether a person on whom burden of proof lies as discharged the same will depend on the facts and circumstances of each case. Anyhow in the discharge of the burden of proof a party can always seek aid of legal presumptions including existence of facts based on common course of natural events, human conduct and public and private business in relation to the facts. So also burden of proof may not be always static. Depending upon the existence of proof of facts it may shift. There cannot be any hard and fast rule regarding the applicability of the rule or its mode of discharge.