SUGREEV SINGH KUSHWAHA Vs. SARASWATI DEVI

JUDGEMENT

(1.) GIRIDHAR Malaviya, J. I have heard Sri K. S. Kushwaha learned counsel for the applicant as also Sri R. N. Shukla learned counsel appearing on behalf of the State This application has been brought by Sri Sugreev Singh Kushwaha against the order dated 15-2-1988 passed by 1st Lower Criminal Magistrate, Ghazipur in Criminal Case No. 488 of 1987 in maintenance proceedings under Section 125, Cr. P. C. The opposite-party No. 1 Smt. Saraswati Devi brought an application under Section 125, Cr. P. C. before the court concerned for being awarded maintenance. The applicant while filing objections raised the plea that the reputation of his wife was not good and she had illicit connection with one Shiv Shanker her brother-in-law who used to drive the tractor of her brothers and that she was living under the influence of aforesaid Shiv Shankar who visited the house and lived with the family of the applicant for a couple of days and during that period the members of the family of the applicant did not like the manner in which he was living in the house and talking to the wife of the applicant. The applicant tried to persuade his wife not to behave in that manner but there had been no improvement in her conduct. She very often used to go to her brothers' place with her aforesaid brother-in-law. It was further asserted that she was still having illicit connection with her brother-in-law and despite panchayat she was not willing to live with the applicant. It was on this pleading of the applicant that by the impugned order the Magistrate directed that applicant should first lead evidence on the point that his wife was living in adultery. Learned counsel for the applicant contends that this procedure adopted by the Magistrate was not in accordance with law. Learned counsel for the applicant has relied upon the case reported in AIR 1962 Punjab 266--Baraj Kumar v. Sudesh Kumari, in which the Punjab High Court after referring to the case of Madras High Court reported in AIR 1938 Madras 833, held in paragraph 5 as follows:- I am inclined to agree with the view of the learned Additional Sessions Judge that this decision ought not to be regarded as setting a standard practice that, wherever in maintenance proceedings a husband raises the defence of adultery on the part of the wife, he should be made to lead his evidence, first. The general principle is that it is for the wife to produce what evidence she has in support of her case. "

(2.) IN coming to this conclusion Hon'ble the Chief Justice of Punjab High Court at Delhi -also was impressed with the fact that the wife should first lead her evidence which was also justified in view of the fact that the husband was resisting the petitioner not only on the ground of adultery but on the other grounds also. Learned counsel for the applicant has also placed reliance on the judgment of Hon'ble Bakshi, J. in the case of Radhey Shyam v. Smt. Hirawati Devi, reported in 197 All LJ 1016. IN the Allahabad case the husband had come up against the order of Sessions Judge after the case had been decided by the Magistrate. That case was decided ex parte against the wife as the wife had not put in appearance to contest that matter. Hon'ble Bakshi, J. , also considered the case of Madras High Court reported in AIR 1954 Madras 90 in R. Subbayamma v. 5. R. Venkat Rao, but felt that since that decision did not indicate pleadings between the parties hence it was not possible to know as to what were the circumstances under which the Madras High Court had taken the view that in he event of allegation of unchastely the husband should be directed to lead his evidence first. Considering the facts of the case Hon. Bakshi, J. found that in the case before him the wife had not been taken unaware about the pleadings and as such she could on the basis of the pleadings be in a position to contradict the allegations which had been made in the objection filed by her husband. It was also disputed in the case that the child for which maintenance was claimed was an offspring of the husband Radhey Shyam from his wife Smt. Hirawati Devi. It was under these circumstances, that the order of the Sessions Judge remanding the case to the trial court with the direction that another opportunity should be given to Smt. Hirawati Devi to lead evidence on the question of her unchastely, was set aside and the Magistrate on the remand of the case was directed to decide the case on merit. This case is, therefore, not an authority on the proposition that in no case the husband should be asked to lead the evidence first where the allegation has been made by him that the wife was living in adultery.

(3.) DURING the course of arguments learned counsel for the applicant was asked that if the applicant was first required to lead evidence on this point in what manner was be likely to be prejudiced. The learned counsel for the applicant could not give any reason or point out any circumstances under which and in what manner the applicant could be prejudiced. I have also not been able to visualise as to in what manner the applicant can be prejudiced if he is asked to lead his evidence first. On the contrary, if he succeeds on this point, then the applicant too will be saved of all botheration in prosecuting the proceedings before the court below.