MANOHAR LAL AGRAWAL Vs. SANTOSH

JUDGEMENT

(1.) THE Judge of the Family Court, Jaipur by his order dated 4 -3 -1992 granted maintenance to respondent No. 1, wife of the appellant and the respondents 2 and 3, daughters of the appellant on an application moved by them on 5th July, 1989. He has allowed Rs. 350/ -per month to the wife and Rs. 150/ - each to the two daughters from the date of application i.e 5 -7 -89. Before coming to the points raised by the learned Counsel for the parties, brief facts of the case maybe looked into. It is an admitted position that the appellant and the respondent No. 1 were married on 18 -5 -1975 and they had three children. Eldest is the son Rahul, who is presently living with the appellant. The other two daughters are living with the mother. According to the respondent No. 1, the relations between husband and wife were cordial up to 1986, but thereafter the appellant started treating her with a cruelty and he used to often beat her. In order to bring bad name even he filed a complaint, but she continued to bear all the insults and lived with him till October, 1988 when she was turned out of the house. Again her mother intervened and she was admitted to the house of the appellant but seven days after Diwali in the year 1988 she was beaten and turned out and thereafter she has been staying with her mother. In the application for maintenance it was alleged by the respondent No. 1 that the appellant had married another woman and the children faced problem and came to her on 18 -5 -1989. However it was mentioned that the respondent No. 1 had no means of income while the appellant was earning Rs. 3,000/ - by working in the NBC and had his personal money lending business, by which he earned Rs. 2,000/ - per month.

(2.) THE appellant filed a reply, in which he alleged that in Jan., 1985, one man by name of Manohar Lal Kumawat came in their neighbourhood and gradually developed intimate relations with the respondent No. 1. She persuaded the appellant to give him a loan of Rs. 46.000/ -. Then on 2 -7 -1985 the respondent No. 1 went away with this Manohar Lal Kumawat leaving behind the house and the children and after searching for her at various places, the appellant lodged a report at Police Station Sodala. The police then, recovered Manohar Lal Kumawat and the respondent No. 1 from a house in Prem Nagar, Jhotwara and produced them before the Court. The statement of Smt. Santosh, respondent No. 1 was recorded under Section 164 Cr. P.C. and then she was sent to Mahila Sadan. According to the appellant the respondent No. 1 never came to his house thereafter and there was no question of treating her with cruelty or turning her out of the house. It was only on 18 -5 -1989 that she took away the children from the appellant's house but then the son Rahul came back to his father on 15 -10 -1990. It was alleged that the respondent No. 1 worked as receptionist in a Hospital and was earning Rs. 1500/ - per month. He pleaded that he was prepared to keep his daughters with him. The respondent No. 1 got an agreement executed on 20 -8 -1985, which was attested by the Notary Public and in this she and Manohar Lal Kumawat declared that they were living as husband and wife. Thus, the claim of the respondent No. 1 for maintenance was contested on the ground that the respondent No. 1 had married again and that she was leading a unchaste married life. The appellant denied his a second marriage.

(3.) IN oral evidence the respondent No. 1 examined herself and her mother while the appellant examined himself and another witness Banwarilal. The learned Judge of the Family Court held that the respondent No. 1 was not earning anything, while the appellant was earning Rs. 2,600/ - per month and that the appellant had refused to maintain his wife and two daughters. While considering the question whether the respondent No. 1 was living in adultery, the learned Judge observed that the complaint was an admission of the appellant himself and the order taking cognizance and framing charge was not a proof of the fact that the respondent No. 1 was living in adultery. Pendency of a criminal case was not conclusive evidence of a particular fact. For the letters alleged to have been written by Manohar Lal Kumawat to respondent No. 1, it was said that they were not proved and even this Manohar Lal Kumawat was not produced as a witness. For the Will, muktyarnama and agreement, the learned Judge stated that they were photostat copies and the original had not been produced before him and the photostat copies could not be relied in evidence and the learned Judge further held that no witness was examined to prove these documents. It was further observed that Santosh was not confronted with her signatures on the agreement and in absence of proving the signatures of Santosh on these documents became meaningless. As for the admission of Santosh in her statement under Section 164 Cr. P.C. that she was voluntarily residing with Manohar Lal Kumawat it was stated that this fact had not been proved by producing the certified copy of the statement under Section 164 Cr. P.C. The rebuttal of the respondent No. 1 in her statement that false allegations have been levelled against her that she ran away with Manohar Lal Kumawat was considered sufficient to hold that the appellant had not been able to prove that the respondent No. 1 Santosh was living with Manohar Lal Kumawat. The mother of the respondent No. 1 appeared as a witness has stated that Smt. Santosh never lived with Manohar Lal Kumawat and the police never took away Santosh and she never stayed in Seva Sadan. The appellant could have supported these allegations by documentary evidence but he failed to do so, hence the learned Judge held that he had not been able to discharge his burden. The statement of Smt. Santosh that she was treated cruelly by the appellant was believed and as she had been turned out of the house she was held entitled to get maintenance from the appellant.