BUDHARAM KOSTA Vs. PITARBAI

JUDGEMENT

(1.) The learned IV Additional Judge to the Court of Sessions Judge, Bilaspur rejected the application filed by the non-applicant No.1 Pitarbal, under section 125 Criminal Procedure Code on a finding that she could not establish that the applicant husband refused or neglected to maintain her. In revision the learned Additional Judge held that the applicant has remarried and therefore, held the non-applicant entitled to maintenance. It has also been observed in paragraph No.7 of the impugned order that there could possibly be no evidence of beating by the husband to wife. In my opinion, the learned Additional Judge has gone completely wrong as he has read into the evidence something which is not there. The observation in the impugned order is that the applicant himself had admitted that he had remarried. I have gone through the deposition of the applicant. He is N.A.W. 1. In paragraph 2 of cross-examination, it appears that without any case, question was put to him if he has remarried. He categorically denied this fact. He further denied that he ever remarried or that he has divorced the second wife too. His version is as follows: ;g dguk xyr gS fd eS vkosfndk }kjk izdj.k isk djus ij eS nwijh kknh dj fy;k A ;g dguk xyr gS fd eSa nwijh kknh fd;k Fkk mis Hkh NksM+ fn;k gWwa A It appears that because of some typing mistake, the learned Additional Judge has misread the deposition. If properly read, it would only indicate that the applicant is emphatic in denying his remarriage. It may be observed that it was not the case of the Don-applicant before the Magistrate that the applicant has remarried. I, therefore, cannot agree with the finding of the lower Court that the applicant has remarried and therefore, the non-applicant had become entitled to maintenance.

(2.) The learned Additional Judge in his endeavor to set aside the finding of the Magistrate that the applicant neglected or ill treated the non-applicant, has only observed that there may be no direct evidence of beating. Thereafter, he bas said nothing. He has not believed the version of the non-applicant to say that she was being beaten or ill treated. He has not referred to the evidence at all. After going through the record I find that it was the non-applicant's case in her application that she wanted to join the applicant. The applicant made such an offer during the trial. That offer was accepted by the Magistrate as genuine. The learned Additional Judge has said nothing about that offer. From the record, that offer appears to be genuine. That being so, the order of the learned Additional Judge, cannot be allowed to stand. It is illegal and must, therefore, be set aside.

(3.) The revision is allowed. The impugned order is set aside and the order passed by the learned Magistrate rejecting the application of the non-applicant No. 1 for grant of maintenance under section 125, Criminal Procedure Code, is restored. Consequently, the application filed by the nonapplicant No. I under section 125, Criminal Procedure Code, stands rejected. Revision allowed.