RADHEY SHYAM Vs. HIRAWATI DEVI

JUDGEMENT

(1.) AN application under Section 125, Cr.P.C. was filed by Smt. Hirawati against her husband Ra­dhey Shyam claiming maintenance for herself and for her child. Her allega­tions were that the husband had treat­ed her with cruelty and had turned her out of the house. That he had neg­lected and failed to maintain her and that he was a man of loose character. These allegations were denied by Ra­dhey Shyam. On the other hand he has alleged that Smt. Hirawati was a woman of loose morals and therefore, she was not entitled to any maintenance. The trial court after a consideration of the evidence on the record led by the par­ties, came to the conclusion that the al­legation of immorality alleged against Smt. Hirawati is established and on this ground he rejected her application for maintenance. Aggrieved thereby a re­vision was filed before the Sessions Judge, Mirzapur, which has been allow­ed on July 17, 1978. The Sessions Judge has remanded the case to the trial court with a direction that an opportunity should be given to Smt. Hirawati to lead evidence on the question of her unchastity. Aggrieved there by the pre­sent revision has been filed.

(2.) I have heard learned counsel for the applicant and have also perused the im­pugned orders. The opp. party refused to accept summons and therefore on ear­lier date I held service to be sufficient. She is unrepresented in this court. I have perused the impugned order. In the court below a Single Judge decision of the Madras High Court was cited. This decision is reported in Raghunathula Subhavamma and others v. Raghu-nathula Venkata Rao (1) on the basis of this decision, the Sessions Judge was of the opinion that the husband should have been directed to lead evidence on the question of unchastely of his wife and thereafter the wife Smt. Hirawati should have been afforded an opportu­nity of rebuttal. I have carefully per­used this decision. The decision is ra­ther brief covering about 12 lines of the report. The pleadings of the parties have not been given in this decision. Thus the specific cases and the allega­tions which have been made by the husband and the wife against each other are unknown. It is merely mentioned therein that where the husband makes an allegation that his wife was living in adultary, the husband ought to have taken up the case first and led evidence of unchastity, so that the wife may rebut it. In the instant case the position ap­pears to be different and clear. While on the one hand the wife in her applica­tion for maintenance under Section 125 Cr.P.C. has made allegations of loose character against her husband, on the other hand the husband has also made allegations of unchastity against wife. In para 3 of the written statement, it hag been very clearly alleged that Smt. Hirawati is a woman of loose character and she is having illicit connection with Bhola Nath Yadav and Buddu Pandit. It is also stated that she goes out of her house for nocturnal visits. When she returns back and is checked, she loses her temper and says that she has every right to go wherever she desires. In para 4 of the written statement, it has also been averred that her immoral acti­vities are continuing even after she has gone to her father's residence. In this state of pleadings, there can be no doubt that Smt. Hirawati was fully aware of the detailed allegations which she had to meet, in order to establish her case for maintenance. Thus she has not been taken unawares. In these circums­tances, no prejudice has been caused to Smt. Hirawati, as a result of her being the first party to lead evidence. For the reasons given above I am also of the opi­nion that it was not at all necessary for Radhey Shyam to lead evidence first, on the ground of unchastity of his wife and for Smt. Hirawati to be allowed an op­portunity subsequently for rebuttal of the evidence. Sir Hirawati could have produced the persons concerned who are said to have illicit connections with her and could have led any other evidence in support thereof to prove that she was not leading an unchaste life. She has failed to do so. Moreover she has ample opportunity of cross-exa­mining the witnesses which have been produced by Radhey Shyam in support of the allegations of unchastity made against her. The Single Judge in Madras case which has been cited before the court below has thus no application to the facts of the present case.

(3.) WITH the above observation, this revision application is allowed. The impugned order of the Sessions Judge dated July 17, 1978 is set aside and the case is remanded back for a decision by the Sessions Judge on the merit. It is desirable that this case should be heard by some other Sessions Judge of com­petent jurisdiction. But before a main­tenance allowance can be given to the minor child it must be established as a fact that the minor child is the offspring of the applicant Radhey Shyam and his wife Hirawati. If the evidence on the record is sufficient to satisfy this test, only then maintenance allowance can be awarded for the minor child.