HUKUMKESH Vs. SUKHMANTIBAI

JUDGEMENT

(1.) The applicant-husband has preferred this revision against grant of maintenance at the rate of Rs. 66/- per month to the non-appellants-wife by the Additional Sessions Judge, Rewa in a proceeding under section 125 of the Code of Criminal Procedure.

(2.) It is not in dispute that the applicant married the non-applicant in Samvat 2020 but the Gona ceremony was not performed. The applicant did not take the non-applicant with him and so she filed an application for maintenance in Misc. Criminal Case No. 46, of 1974 but the parties entered into a compromise and the application was dismissed on 26.12.1974. The applicant had taken the non-applicant on 19.12.1974 he kept her not in his house but kept her outside the village in a Ahri (cattle shed). The applicant did not care to meet her and after a few days he went away to Bhopal where he is serving as a Lower Division Clerk in the Forest Department. In his absence, his mother, brothers and other relations used to ill-treat and beat the non-applicant as a result sue had to leave the place on 9.1.1975 and since then she is living with her parents; She claimed maintenance at the rate of Rs. 150/- per month saying that besides getting the salary the applicant also owns a house and agricultural lands and the applicant had refused and neglected to maintain her she was cruelly treated and turned her out of the house. The applicant in his reply-submitted that the non-applicant is mentally retarded and deaf and this fact was not disclosed to him before the marriage; the applicant had taken the non-applicant after she filed the application for maintenance in pursuance to the compromise and she was kept in Ahri as the time was not yet auspicious for taking her to his house; however he took her to his house on 15.12.74 but she had voluntarily left the place on 9.1.1975; the applicant is a poor clerk and he gets a very low salary; he is willing to keep the non-applicant with him; she has got ornaments worth Rs. 5000/- given to her by her father and she has got a buffalo and as such she is not entitled to any maintenance.

(3.) The trial Magistrate without recording any finding as to whether the applicant has refused and neglected to maintain the non-applicant or whether she was cruelly treated rejected the application simply on the ground that the non-applicant has failed to prove that she was unable to maintain herself. In revision, the learned Additional Sessions Judge by relying one decision of the Supreme Court in Bai Tahira v. Ali Hussain1 held that the burden was on the applicant to show that the non- applicant is in a position to maintain herself and she is not expected to prove the negative fact that she cannot maintain herself; the applicant has not substantiated his pleading that the non- applicant has got ornaments worth Rs. 5000/- and a buffalo; even if she has got some ornaments this must have been sold in order to maintain herself since her parents are not in affluent circumstances; the applicant for some reason did not like the non-applicant and he refused to take her to his house on onto pretext or another; first he made certain demands that he has not been given certain things which were promised during the marriage and afterwards started saying that she is mentally deranged and deaf; she gave a notice which was not replied by the applicant and ultimately she filed an application for maintenance; the applicant got the same compromised on false promise that he would keep her; he took her to his village but kept her in the Ahri which is a cattle shed and he never cared to live with her; she was not given food and was only given one meal a day and she used to be ill-treated and tortured by the applicants relations; after a week the applicant went away to Bhopal. Therefore, it is proved that the applicant has been refusing and neglecting to maintain the non-applicant and she was cruelly treated. The applicant is getting a salary of Rs. 438.60 per month and after deduction he gets Rs. 325.60 per month. Therefore, maintenance at the rate of Rs. 60/- per month has been awarded.