GURDEV KAUR Vs. SH. CHAND SINGH

JUDGEMENT

(1.) SMT . Gurdev Kaur petitioner brought an application under section 125 of the Code of Criminal Procedure, claiming to be wifie of the respondent. According to her the marriage took place between the parties about 28 years ago after that they lived and cohabited to gether and out of this wedlock one son and a daughter were born. It was averred that under the influence of his step-mother Gurdial Kaur, the respondent used to give her beating and that in the month of August, 1981, the respondent turned her out of his house after giving beating in the presence of Depty Singh residence of village Mohan Pura. Thereafter, she started living with her parents. It was also pleaded that the respondent had contracted a second marriage with the dauthter of Arjan Singh, resident of village Bhunder. In reply, the respondent denied the allegatkions of the petitioner. It was pleaded byd him that the petitioner wanted the respondent to get his land mutated in equal shares in her name and that of her son; that she left the company of the respondent of her own accord and that neither he maltereated her nor contracted a second marriage. The parties led their evidence. The trial Court granted maintenance @ Rs. 250/- per month to the petitioner. Feeling aggrieved, Chand Singh respondent went up in revision. The learned Additional Sessions Judge, Faridkot, accepted his revision and set aside the order of the Court granting maintenance to the petitioner. She has now come up by way of revision.

(2.) THE learned counsel for the petitioner at the outset submitted that the trial Court in this case had found that the respondent had contracted a second marriage with the daughter of Arjan Singh, resident of village Bhunder, and on this ground alone the petitioner was entitled to maintenance and having given such a finding, the learned Additional Sessions Judge was not competent to alter that finding of fact given by the trial Court in revision. This argument of the petitioner's counse, however, does not appeal to me because the provisions of Section 397 of the Cide if Criminal Procedure are quite clear. The revisional Court can go into the question whether the finding given by an inferior Court is correct, legal or otherwise. Apart from that, I find that the learned counsel for the petitioner has not been able to pose any meaningful challenge to the appraisal of the evidence by the revisional Court and the findings arrived at. After appraising the evidence, the revisional Court found that the wife had failed to establish that her husband had contracted a second marriage and had also failed to prove that there was any other ground for her living apart and thus she was not entitled to claim maintenance and that even the allegation or cruelty had not been proved by any reliable evidence. Be that as it may, when the wife had not shown sufficient grounds for living separately from the husband and for claiming maintenance i.e. wife had failed to establish that the husband had neglected or refused to maintain her. The right of wife to be maintained by the husband stems from the performance of the marital duty. A wife who is not prepared to do that cannot claim maintenance as a matter of right under the statute. It is only when the Court, inter alia, comes to a finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance as in that case it could be said that while the wife was prepared to perform her part of the marital duty, she had been prevented from doing so by the husband. Otherwise, it could come to this that a wife may decide on her own to live away from the husband and seek maintenance without any kind of fault on the part of the husband. She migtht say, "I do not like your face and so I would live away and since I am your wife it is your duty to maintain me wherever I may choose to live." In the premises, the learned Additional Sessions Judge was justified in setting aside the order of the trial Court granting maintenance to the petitioner and I affirm his finding.