JAGDISH CHANDRA Vs. S

JUDGEMENT

(1.) Smt. Ramwati Bakshi filed an application under Section 125 Cr. P. C. claiming maintenance allowance from her husband Jagdish Chandra. Her case was that she was the legally wedded wife of Jagdish Chandra, that Jagdish Chandra had re-married with Smt. Chandrawati; that he was given to loose habits that he had treated her with cruelty and turned her out of the house; that a Panchayat was held but he did not agree to keep her, but threatened to kill her if she returned to her house; that she is residing with her brother that her husband earns 6000/- rupees annually and that he has failed to maintain her and she is unable to maintain herself. These allegations were denied by Jagdish Chandra. His case was that Smt. Somwati had consented to the second marriage, that she has remained with him for a few years after the remarriage, that she had left her house out of her own free-will, that he was not guilty of any cruelty towards her, that he had no means to maintain her; that he was willing to keep her with him. The trial Court on a consideration of the evidence on the record and the circumstances of the case dismissed the application for maintenance filed by Smt. Somwati. His finding was that the second marriage of Jagdish Chandra with Smt. Chandrawati had been performed with the consent of the first wife; that Smt. Somwati was residing with the respondent till September, 1979; that she went to her parent's place with her brother out of her own free-will and volition; that the allegations of maltreatment to the wife were not proved; that the husband was willing and ready to keep his first wife; that Jagdish Chandra was unable to maintain herself. On these findings the trial Court dismissed the application under Section 125 Cr. P. C. Aggrieved thereby a revision was filed by Smt. Somwati before the Sessions Judge, Badaun which has been allowed on 15th December, 1980. Hence his revision. I have heard learned counsel for the parties and have also perused the impugned order. The first submission which the applicant's counsel has made is that the Sessions Judge has acted illegally in the exercise of his jurisdiction in re-assessing the evidence on the record and in arriving at findings of fact, contrary to that of the trial Court. It may be mentioned at this stage that the trial Court's findings which are enumerated above, were practically all set aside by the revisional Court. It is not necessary to detail them again. Suffice it to say that the Sessions Judge was of the opinion that since the second marriage of Jagdish Chandra had been performed without the consent of Somwati and since she had been treated with cruelty and turned out of the house and was unable to maintain herself; she was entitled to maintenance allowance of Rs. 75/- per month. So far as the findings of fact are concerned, I am in agreement with the submission made by counsel for the applicant that the Sessions Judge has no jurisdiction to re-appraise the entire evidence and to reverse the findings of fact arrived at by the trial Court. I am, therefore not prepared to accept the findings of the Sessions Judge. I do not find an illegality or perversity in the findings of fact recorded by the trial Court to warrant interference in the exercise of revisional jurisdiction. I am, therefore, bound to accept the finding of fact, which the trial Court has recorded on the merits of the case. The next question which arises for consideration is whether the findings as arrived at by the trial Court are sufficient to disentitle the wife to maintenance allowance. The crucial finding recorded by the Magistrate is that the second marriage of Jagdish Chandra had taken place with the consent of Smt. Somwati. Since she had consented to remarriage of her husband therefore, in law she would not be entitled to claim any maintenance allowance. Support for this proposition is sought for by learned counsel for the application on the basis of the Single Judge decision of this Court, in Udit Naram v. Smt. Paudhariya ( 1980 A. L. J. 171) Then argument further is that because consent had already been given by the wife, who had left her husband's house of her own free will, therefore, she would not be entitled to claim any maintenance from him. Having carefully perused the Single Judge decision of this Court referred to above, I find that in that decision relief was refused to the wife on the ground that she had acquiesced to the second marriage of the husband. In this connection it would be relevant to quote sub-section (4) of Section 125 which reads thus; "no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reasons, she refused to live with her husband, or if, they are living separately by mutual consent". It would be pertinent to note that separate residence by mutual consent is one of the conditions that disentitles the wife to maintenance. This sub-section lays down three exceptional clauses for disentitlement of maintenance allowance to the wife, but does not add a fourth clause to the effect that if she consents to her husband marrying again she will also be disentitled to maintenance allowance. There was nothing to prevent the legislature from adding a fourth exception to sub-section (4) since three of them had already been included in that section. It is a very salutory principle of interpretation of statutes that a Court cannot add to or subtract from the direct phraseology of that section. The meaning of a particular section has to be interpreted as it is in a reasonable and natural way. It is for the legislature to enact laws and to amend them, but a Court of law has merely to interpret the section as it stands. In this very connection, it may also be noted that the explanation to Section 125 (3) runs as follows: " If the husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. " Here again, it may be noticed that the contracting of a second marriage by the husband has not been qualified by any consent express or implied, alleged to have been given by the wife to the second marriage. In other words whether the wife has consented to the second marriage or not, is of no consequence. In so far as her right to refuse to live with her husband is concerned, the crucial fact is the contraction of a second marriage. This if the husband has entered into the second nuptial arrangement with another lady, then such marriage would give a right to the wife to refuse to live with her husband. In this view of the matter, I am of the opinion that consent given by the wife to a second marriage or even her acquiescence to the second marriage, will not in any way affect her legal right to refuse to live with her husband and to claim maintenance allowance from him for her support. In the decision cited above, the distinction was that the first wife had agreed to live separately. It is thus evident that on the grounds mentioned above, neither the explanation to Section 125 (3), nor sub-section (4) of Section 125 Cr. P. C. comes to rescue of the husband who has contracted a second marriage even with the consent of his wife. He would still be liable to pay her maintenance allowance till such time as his first wife had not remarried. The findings that have been recorded by the trial Court are that the husband Jagdish Chandra has entered into a second marriage with Smt. Chandrawati. This established factand finding of the trial Court alone is sufficient to entitle Smt. Somwati to a maintenance allowance. As for the quantum of maintenance, the Sessions Judge has already dealt with that material in his impugned order. I do not find any error in the findings which have been recorded by the Sessions Judge with respect to the means of the husband, He has taken the entire evidence and the circumstances into consideration and arrived at a finding that a sum of Rs. 75/- per month would be a proper allowance. I have no hesitation in accepting this quantum of allowance as correct. In the result, therefore, this revision application is hereby dismissed in the light of the observations made by me above. Smt. Somwati will be entitled to receive maintenance allowance at the rate of Rs. 75/- per month from the date of her application. The stay order granted by this Court on 23-1-1981 is hereby vacated. .