GYATRI BAI Vs. RAM KARAN

JUDGEMENT

(1.) THE facts, giving rise to this petition under Section 482 of the Code of Criminal Procedure, 1973 ("the Code"), are as under :-

(2.) ON 21.2.1991, the petitioner, Gayatri Bai had filed an application under Section 125 of the Code, in the court of learned Additional Chief Judicial Magistrate (ACJM), Chhabra, District Baran, stating that she is the lawfully wedded wife of the respondent No. 1, Ramkaran, and two daughters of the wedlock had been born to her, but that the respondent No. 1 had been treating her with cruelty and had refused and neglected to maintain her and the two daughters of the wedlock and had also contracted a second marriage. The said application was contested by the respondent No. 1, Ramkaran, who denied having treated the petitioner with cruelty and stated that the petitioner was living, without any sufficient cause, away from him and had not returned to him in spite of the efforts made by him, in this regard. It was also pleaded that the petitioner was in a position to support herself and was not entitled to any maintenance. After recording the evidence, produced by the parties and hearing their learned counsel, the learned trial court came to the conclusion that the respondent No. 1 is employed as a teacher and had treated the petitioner with cruelty and had also contracted a second marriage with one Smt. Vimla, who had given birth to a girl and also that the respondent No. 1 had refused and neglected to maintain the petitioner and her two daughters of the wedlock and directed the respondent No. 1, to pay Rs. 200/- per month by way of maintenance, to the petitioner, from the date of presentation of the application and Rs. 125/- for the maintenance of each daughter, from the said date, i.e., in all, Rs. 450/- per month. The petitioner challenged the above-said order, passed by the learned trial court on 13.1.1994, by filing a revision petition before the learned Additional Sessions Judge, Chhabra, who after hearing the learned counsel for the parties, vide the impugned order dated 19.7.1995, passed in Criminal Revision Petition No. 5/94, upheld the findings of the learned trial court that the respondent No. 1 had treated the petitioner with cruelty and had also refused and neglected to maintain her, but observing that the petitioner must be making some money by doing some labour-work and that the respondent No. 1 is getting a monthly salary of Rs. 1,200/- only and that the amount of maintenance, granted to the petitioner, for herself and for her two daughters, was excessive has reduced the same from Rs. 200/- in favour of the petitioner, to Rs. 150/- in her favour and from Rs. 125/- for each of the daughters, to Rs. 100/- and thus, the total amount payable by way of maintenance, has been reduced from Rs. 450/- per month to Rs. 350/- per month. Feeling aggrieved, the petitioner has approached this Court by filing this petition.

(3.) IT has not been disputed before me that the respondent No. 1, is employed as a teacher and has been getting his salary, for which, the record is available. On my asking as to how a sum of Rs. 1,200/- only has been mentioned in the impugned order, as salary of the respondent No. 1, the reply of the learned counsel for the respondent No. 1, is that the said amount was the basic salary of the respondent No. 1. In spite of my asking, no salary certificate has been produced, although, opportunities were taken by the learned counsel for the respondent No. 1, for that purpose. The respondent No. 1 was in possession of the best evidence in regard to the salary that he has been receiving as a teacher and it was his duty to have produced the evidence, in the form of salary certificate, before the learned courts below or at least before this court, when asked to do so. He having failed to do so, diverse presumption has to be drawn against him and it has to be taken that if the salary certificate had been produced, that would have shown the facts, which are unfavourable to the respondent No. 1. Judicial notice can be taken of the fact that these days, even a Class-IV Government employee is getting about Rs. 2,000/- by way of salary, every month, and a teacher thus cannot be said to be drawing less than Rs. 3,000/- a month and this position is not disputed by the learned counsel for the respondent No. 1, who has appeared before me in Court today. The learned trial court gave a finding that the petitioner was unable to support herself and was not making any income, and the learned Additional Sessions Judge disturbed that finding of fact, without any reason and there being no evidence and on the basis of presumption. Even otherwise, the petitioner being a wife of a teacher, is not supposed to work as a labourer and has to live the life as a wife of an educated person, i.e., a teacher. Considering the income of the respondent No. 1, in my view, even the amount of maintenance, fixed by the learned trial court, was on the lower side and I find no reason as to why, the learned Additional Sessions Judge ought to have reduced the amount by Rs. 100/- per month and without noticing the fact that the respondent No. 1 was not producing the evidence, which was available with him. While exercising the power of revision, the learned Additional Sessions Judge had to see, whether the order was in accordance with law and could not have disturbed the discretion, exercised by the learned trial court, after recording the finding on the basis of the evidence, produced by the parties and unless that finding was unreasonably perverse. In the impugned order dated 19.7.1995, the learned Additional Sessions Judge appears to have disturbed the finding of the learned trial court and also interfered with the discretion without any good ground. The impugned order, therefore, has resulted into injustice to the petitioner and is liable to be set aside.