NEERA Vs. BHALCHANDRA

JUDGEMENT

(1.) - The unsuccessful wife in getting maintenance from her husband has approached this Court under the inherent powers under section 482 of the Criminal Procedure Code. She had applied before the magistrate under Section 125, Cr. P. C. claiming maintenance. Inter alia she had claimed in her application that she was illtreated by her husband and that she was neglected and was not provided any maintenance. She has claimed that she left her husband's shelter in November 1982 and filed the application in question in September 1984. She also alleged that her husband had demanded by a latter, a radio and a fan from her father. She also alleged that the husband has published a public notice in local daily on 24th May, 1983 declaring thereby that he has given divorce to the wife and that he was free to contact the second marriage. She further pleaded that her parems are unable to maintain her and that her husband is earning Rs. 900/- per month as a salary. The application of maintenance was opposed by the husband on various grounds. According to the husband, he was prepared to maintain her and had actually made attampts to bring back her but she was adamant and did not come to reside with him and therefore, she has no reason to claim any maintanance.

(2.) DURING the trial, both sides filed various documents and also led oral evidence. According to the learned Magistrate, the letters Exhibit 22 and 23 in which the demand for fan and radio was made by the husband were not intended to be acted upon. As regards ill-treatment, according to the learned Magistrate, the instance mentioned by the wife were not enough to prove her case. There were also the allegations made by the wife that the husband had contacted second marriage with one Kanta, but it was not properly proved. On these reasons, the application was dismissed. In revision, the learned Sessions Judge took the view that the husband has taken the initiative to take the wife back and had made genuine efforts for the same, but the wife remained adament. According to the learned sessions Judge, in view of the attempts made by the husband which were genuine, the wife had no reason to justify to stay separately and claim maintenance. In short according to the learned Sessions Judge the order dismissing the application of the wife was correct It is to be noted that certain in facts are not in dispute viz. that the applicant and non-applicant are legally wedded. The letters Exhibit 22 and 23 dated 4-1-1983 and 2-2-1983 respectively as well as the public notice printed in the issue of daily 'lokmat' dated 24-5-1983 at Exhibit 21 is also not in dispute. Similarly, the notices issued by the husband dated 16-3-1983 (Exhibit 18) and 24- -1983 (Exhibit 19) and the reply sent by wife dated 1-6-1983 at Exhibit 20 is also not in dispute.

(3.) IT has been contended by Shri Choudhary, the learned Counsel for the applicant, that the public notice dated 24-5-1983 at Exhibit 21 published in daily 'lokmat' held out a potential threat of divorce and therefore, the applicant was justified in residing with the parents and refusing to go to the husband. Apart from the aforesaid admission on the part of the husband, the letters issued by the husband Exhibit 22 and exhibt 23 also contain the demand of radio and fan. Although it is argued by the learned Counsel for the husband that he waived that condition provided the wife comes to reside with him, the fact remains that the wife did not come to the husband till September 1984 when she filed the application claiming maintenance. Shri Choudhary, in support of his contentions, relied the decision of the Supreme Court in the case of Mst. Khatoon v. Mohd. Yamin, (1982 (2) Supreme Court Cases 373 ). The Hon'ble judge of the Supreme Court have taken the view that the husband writing a letter to the wife asking her to come back to him otherwise he would give divorce amounts to a thereat to the wife to return to the husband on. the pain of being divorced. According to the learned Judge of the Supreme court, the fact that the letter was couched in most discourteous terms and amounted to a clear threat to divorce the wife and sought to obtain her consent to live with him under duress, was in their opinion a sufficient reason for the wife for refusing to live with her husband. The admitted facts in the instant case are more or less similar. Exhibit 21 the public notice dated 24-5-1983 clearly indicated that if the wife does not come to reside with him it would be treated that she does not want to live with him and that if she does not return within seven days with the ornaments and the clothes, it would be treated as a divorce and that the husband would be entitled to contact second marriage. Thereafter, in her reply Exhibit 20 dated 1-6-1983, the wife has alleged ill-treatment and therefore refused to live with the husband. This admitted fact has not been properly interpreted by both the courts. As a circumstance for the wife to reside separately. Accepting the argument of Shri Parchure, the learned Counsel for the non-applicant, that though the demand made in the letters Exhibit 22 and 23 was waived, there are traces to show that by those letters the husband wanted to exert pressure on the wife to return under certain duress. It has to be seen that when she had made clear that her parents were unable to maintain her, it was consequential that she would not be able to return to the husband with the demand made by the husband. After all, to return to the husband empty handed would be a risky situation for the wife to invite trouble from the hands of the husband. In my view, the husband by his own conduct has exhibited neglect of the wife although he made a show of bringing her back. It appears from the letters and the public notice that he, in reality, never intended to bring back the wife. Although pleaded, there is no reliable evidence on record to show that he contacted the second marr iage with Kanta. Under these circumstances, in order to secure the ends of justice, it constrains this court to set aside the orders of both the courts and allow this application.