PURNAMASI PRADHAN Vs. SURESH PRADHAN

JUDGEMENT

(1.) THE legally married wire of opposite party is the Petitioner against the order of the Sub -Divisional Judicial Magistrate, Bargarh, who has dismissed her application for maintenance filed under Section 125 of the Code or Criminal Procedure (hereinafter referred to as the "Code"). The Petitioner filed the petition alleging that she married the opposite party in 1969 and continued to live happily for about four years. Thereafter, the opposite party started ill -treating her and assaulted her and ultimately drove her out of his house and left her in her parents' house. She was not taken back by her husband (opposite party) in spite of her best efforts. Ultimately, her husband has married to another lady called Mumudini, daughter of one Ratra Pradhan of village Hilminda. The Petitioner claimed that the opposite party had about 11 acres of landed property and should pay a maintenance allowance of Rs. 250/ - per month. The opposite party admitted the Petitioner to be his legally married wife but denied all other allegations made in the petition. According to the opposite party. it is the Petitioner who herself went away to her parents' house and wilfully does not come to her husband and, therefore, she is not entitled to receive any maintenance under Section 125 of the Code. The learned Magistrate after examining the evidence adduced in the case came to the conclusion that the Petitioner could not prove that she was ever ill -treated or assaulted by the opposite party and further the Petitioner had been driven away from the house of the opposite party at the instance or the opposite party, as alleged by her. According to the learned Magistrate, the Petitioner, therefore, is not entitled to get the maintenance allowance. So far as the allegation of second marriage of the opposite party with Kumudini is concerned, the learned Magistrate has held that the Petitioner has failed to prove the alleged second marriage of the opposite party. On these findings, the application for maintenance has been rejected.

(2.) MRS . Pad hi appearing for the Petitioner contends that the basic approach of the learned Magistrate in appreciating the evidence has become erroneous which has vitiated the conclusions and, therefore, this Court should interfere with the order of the learned Magistrate. Mr. Behura, the learned Counsel for the opposite party, on the other hand, contends that in the absence of proof of neglect by the husband, if a wife deserts her husband and remains in her father's house at her sweet will, she is not entitled to get any maintenance under Section 125 of the Code and consequently the order of the learned Magistrate is unassailable.

(3.) THAT the Petitioner is the legally married wife of the opposite party is an admitted fact. It, therefore, remains to be considered whether on the evidence adduced, the Petitioner has been able to establish that her husband, the opposite party, refuses or neglects to maintain her and she is unable to maintain herself. After perusing the order of the learned Magistrate, I am of the view that the basic approach of the Magistrate is erroneous. While appreciating the evidence, the learned Magistrate has been swayed away by three features appearing in, the case, namely: