THESE ARE A LIST OF JUDGMENTS THAT HOLD A WIFE WHO WILFULLY DESERTS HER HUSBAND IS NOT ENTITLED TO MAINTENANCE.
a) Harjeet Kaur vs Bhupinder Singh on 30/4/2007
Himachal Pradesh High Court
Kuldip Singh, J.
1. The wife has filed this appeal against the judgment and decree dated 1-5-2000 passed the learned District Judge, Shimla in H.M.A.C. No. 6-S/3 of 1997 dissolving the marriage of the parties by a decree of divorce on the ground of desertion. The parties in the judgment are referred in the same manner as in the impugned judgment and decree.’
2. The facts disclosed in the petition filed by husband are that marriage between the parties was solemnized on 7-4-1985 according to rites and customs of Sikhs at Ambala. The parties initially cohabited at Paonta Sahib and then at Jutogh, Shimla where the petitioner was posted. The behaviour of the respondent
towards petitioner was rude and cruel from the very beginning. She would pick up quarrel over petty matters. She never attended to the friends and relatives of the petitioner whenever they visited his place. The attitude of the respondent towards mother, sisters and other members of petitioner’s father’s family was also not good. She used to pick up quarrel with them. She always insisted to live separately. The petitioner being the eldest member of his father’s family could not afford to live separately. This annoyed the respondent.
3. The respondent was in the habit of visiting her parents at Ambala after every 15-20- days. She would insist the petitioner to accompany her and when he expressed his inability to meet this unreasonable demand she turned furious and created tension. She always taunted and harassed the petitioner and often proclaimed that she did not like his looks. A daughter was born front the wedlock on 24-12-1986 at Ambala at the parental house of the respondent. After birth of the child she returned to Jutogh in March 1987 but in July 1987 she left the matrimonial home. During her short stay from March 1987 to July 1987 at Jutogh she created disharmony and friction in the matrimonial home. She was
requested many times to return to Shimla. On Persuasion she came in December 1987 but again left for Ambala in March 1988. On the request of the petitioner and his family members she came back in April 1988 and soon started humiliating and nagging the petitioner. She insisted to go back to her parents’ place in Ambala but the petitioner did not agree to this. The respondent by making her own arrangement left the house of the petitioner in September 1988 and since then she is living at Ambala.
4. In February 1992 she filed a petition for divorce in the Court of
Additional District Judge, Ambala which was withdrawn on 6-8-1992 when she realized that no ground of dissolution of marriage existed. Thereafter, she filed a petition for maintenance in the Court of judicial Magistrate 1st Class, Ambala Cantt. This petition was allowed on 29-11-1994. She filed another petition- for grant of maintenance to minor daughter of the parties which was pending at the time of filing of the present petition.
The case of the petitioner in brief is that respondent has left the
matrimonial home in September 1988 without any excuse and has refused to return to the matrimonial home and this constituted desertion. He further alleged that the attitude and behaviour of the respondent had been cruel throughout her stay with him and so he is entitled to divorce on the ground of mental -cruelty and desertion.
5. The respondent contested the petition. She has taken the plea that the petition has not been filed in accordance with the rules. She has denied all the allegations of cruelty and desertion. The respondent has taken the plea that in fact the petitioner and his family members had been cruel to her during her stay with the petitioner. She denied that she ever asked the petitioner to separate himself from his father’s family. She denied that she was in the habit of visiting her parents frequently. According to her, she used to visit her parents occasionally. She has alleged that the petitioner used to give her beatings after excessive drinking and that her mother-in-law also used to quarrel with her. She has pleaded that the daughter was not born in December 1986, rather she was born on 24-9-1987 and nobody from the side of her in-laws, including the petitioner, visited her parents’ place after the birth of daughter. She has denied that she came to Shimla along with her child and left the matrimonial home in September 1988.
6. The learned District Judge allowed the petition on the ground of desertion and rejected the case of the petitioner to seek divorce on the ground of cruelty.
7. I have heard the learned Counsel for the parties and have also gone through the record.
8. The learned Counsel for the respondent has submitted that the learned District Judge has misconstrued and misinterpreted the evidence on record. The view taken by the learned District Judge on the point of desertion of the wife is wrong. He has submitted that husband has miserably failed to prove the desertion of the wife. The learned Counsel for the petitioner /husband has supported the impugned judgment and decree and has submitted that the learned District Judge has rightly come to the conclusion that wife has deserted the husband without reasonable cause. He has submitted that the husband has proved factum of desertion as well as intention of the wife not to live with the husband.
9. The husband has appeared as his own witness as P.W. 1. He has deposed that their marriage was solemnized on 7-4-1984 at Ambala and the daughter was born at Ambala in December 1986 from the wedlock. The respondent came to Shimla for short intervals but stayed most of the time with her parents even after the birth of the daughter. She would come to Shimla to stay with the petitioner on persuasion but during her stay at Shimla she would not co-/ operate with the petitioner. She lastly left Shimla in July 1988 and thereafter never returned.
In the year 1991 or 1992 she filed a divorce petition against the petitioner at Ambala which was withdrawn by her later on. Then she filed a petition to claim maintenance which was allowed and petitioner was directed to pay maintenance.
She filed another petition for maintenance for the daughter which petition was also allowed. He tried to settle the matter. The petitioner was cross-examined at length but nothing favourable to the respondent has come in the cross-examination of the petitioner. P.W. 2 Sainu Ram is the person who was living in
the neighbourhood of the parties at Jutogh. He has stated that the parties used to quarrel and the quarrel used to be initiated by respondent. P.W. 3 is Dharminder Pal Singh who has stated that respondent used to pick up quarrels.
The respondent used to left matrimonial home after every 3-4 months. She would stay only for a few months and again her parents or brothers would take her to Ambala. In cross-examination he has stated that he has not seen the respondent
at Jutogh since 1988 and she finally left the matrimonial home in 1988. P.W. 4
Jitender Singh is the elder brother of the petitioner. He has stated that behaviour of the respondent with the petitioner has not been good from the very beginning. For the last 10-11 years, the respondent has been staying with her parents. The respondent Harjeet Kaur appeared as R.W. 1. She has stated that she was not treated well by the petitioner whenever she lived with him. He is
habitual of drinking. She has admitted that she filed a divorce petition against the petitioner at Ambala which was withdrawn. She has stated that she did not return to the place of petitioner even in the company of her brother or father or father’s brother after September 1987 because nobody from her in-laws side came to see the child delivered by her. She has further stated that she filed the maintenance petitioner because the petitioner did not turn up at her parents’ place to bring her back to Shimla. She has also admitted that she filed another maintenance case for the daughter. RW-Pradeep Kumar has stated that respondent used to complaint about the behaviour of petitioner. In cross-examination he has stated that his house is close to the house of respondent’s
parents’ house. This is the only evidence led by the parties.
10. It is a fact that respondent is not living with petitioner since
September 1988, that means for the last 19 years the parties are living separately. The respondent herself filed divorce petition for dissolving the marriage of the parties which was withdrawn later on by her. She filed one petition for maintenance for herself and another petition for maintenance of the daughter. The respondent has not shown any reasonable cause to live separately at Ambala. There is nothing on record that respondent ever approached the lawful authorities against the alleged ill treatment of husband. The residence of the respondent after marriage is with the petitioner. She has not placed unimpeachable evidence on record to support her separate living. On the basis of material on record and conduct of the respondent, it is clear that respondent has no intention to live with the petitioner and to continue the matrimonial tie. The petitioner has proved desertion and the respondent has failed to prove any just and reasonable cause to live separately. She has levelled bald allegations against the petitioner which has not been proved. The learned District Judge has appreciated the evidence in its right perspective. The petitioner has proved the factum of desertion as well as animus deserendi on the part of the respondent, The learned Counsel for the respondent has relied on
Lachman Utamchand Kirpalani v. Meena alias Mota for the proposition that petitioner cannot take benefit of his own wrong. He has submitted that respondent has excuse to live separately. The petitioner did not make efforts for reconciliation and for taking back the wife and, therefore, it will be presumed that husband has consented for separate living of wife. In the present case, it has been proved on facts that respondent without any reasonable cause has left the company of the petitioner. The wife is living at Ambala against the wish of the petitioner. It has come on record that petitioner several times made attempts to bring back the respondent but every time after staying for some time at Jutogh she left the company of the petitioner and since September 1988 she has not come back to live with husband in the matrimonial home. In para 20 of Lachman’s case (supra), the Hon’ble Supreme Court has observed as follows:
20. The other matter is this. Once desertion, as defined earlier, is
established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining
the relief of judicial separation, for once desertion is proved the deserting spouse, so long as she evinces no sincere intention to effect a reconciliation and return to the matrimonial home, is presumed to continue in desertion.
The Lachman’s case (supra) helps the petitioner rather than the respondent.
The learned Counsel for the respondent has failed to make out any case for interference.
No other point was urged.
11. In view of above discussion, the appeal is dismissed and the impugned judgment and decree are affirmed with no order as to costs.
b) GH COURT
(G. L. GUPTA, J. ( Single Bench ))
GOMA DEVI AND OTHERS
1999 CRLJ 1789 RAJ
Criminal Revision No. 179 of 1997, D/- 22 -1 -1999.
Criminal P.C. (2 of 1974) S. 125
Order :- This revision by the husband has been preferred against the revisional order D/- 17-3-97 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner whereby he set aside the order D/- 22-4-95 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondents Nos. 1 to 3.
2. The short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under S. 125, Cr. P. C. against her husband-Bheeka Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheeka Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated that Bheekha Ram earned Rs. 60/- per day by doing Mason work. It was prayed that she be allowed maintenance @ Rs. 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.
3. Goma Devi entered into the witness box and examined A. W. 1 Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined N. A. W. 2 Kaluram, N. A. W. 3 Modaram and N. A. W. 4 Sampatram. After hearing the counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegations of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against that order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.
4. Mr. S. D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bano v. Sher Mohammad, 1990 RCC 57, Bhanwari Bai v. Mohd. Ishaq, 1984 MLR 234, Budharam Kosta v. Pitarbai, 1984 MLR 62 and Raghbir Singh v. Krishna, 1982 MLR 307.
5. On the other hand, Mr. G. K. Vyas urged that this Court should not interfere in the revisional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.
6. I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reappreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a revisional Court is not as that of appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revision power, the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bound of its jurisdiction including the question whether the Court had failed to exercise the jurisdiction vested in it : vide Associated Cement v. Keshvanand, AIR 1998 SC 596.
7. In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that on her own admission she was living in the house constructed by her husband. On the admissions of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Dist. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under S. 125, Cr. P. C. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife. 8. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to stay with him but she refused to accept the notice.
9. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her. Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is no fault of the children when they are living with their mother. The father is bound to provide maintenance to them.
10. Consequently, this revision is partly allowed. The order of the Addl. Sessions Judge granting maintenance to Goma Devi is set aside. The order granting maintenance to the children is upheld.
c) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 201 Of 2006
Smt. Archana Gupta & Another .. Revisionists.
Sri Rajeev Gupta & Another .Respondents
Mr. M.K. Goyal, learned counsel for the revisionists. Mr. Rakesh Thapliyal, learned counsel for respondent no. 1. Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.
Dated: November 18, 2009
Hon’ble Alok Singh, J.
(By the Court)
Present revision has been filed by the wife under Sections 397/401 Code of Criminal Procedure read with Section 19(4) of Family Courts Act challenging the order dated 05.10.2006 passed by Principal Judge, Family Court, Dehradun refusing to grant maintenance to revisionist no. 1.
Heard Mr. M.K. Goyal, learned counsel for the revisionists, Mr. Rakesh Thapliyal, learned counsel for respondent no. 1 and Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.
Learned counsel for the revisionists contended that finding of the learned Principal Judge, Family Court, Dehradun on issue no. 1 that wife is living separately without any sufficient cause is perverse.
In nutshell, brief facts of the present case are that wife/revisionist no. 1 preferred an application under Section 125 Cr.P.C. against the respondent no. 1 seeking maintenance for herself and for their minor son, revisionist no. 2. The main grounds of claim mentioned in the application are that husband has developed bad habits like consuming alkahol, gambling and adultery. That husband wanted to dispose of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. That husband has taken loan to meet his bad habits. It is further contended that husband is living separately and is not maintaining the wife and son. In paragraph no. 8 of the application, it is pleaded that wife is working in inter-college, Tanko, Saharanpur temporarily from where she is getting Rs. 2200/- per month.
Husband filed his written statement before the trial Court and denied the contentions made by the wife in the application. In defence husband has specifically pleaded that wife is under the influence of her father. That under the pressure of wife and her father husband/opposite party had to execute permanent lease of his property in favour of the wife pertaining to property of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. It is further contended that at the time of execution of lease, it was agreed between the parties that from the date of execution of lease wife would start living with the husband and her father would not interfere in the matrimonial affair of the husband and wife. It was further pleaded by the husband that it is the wife who wanted to live separately under the influence of her father. Further case of husband is that she resigned from the service from where she was getting Rs. 3, 000/- per month and joined the service at Saharanpur for Rs. 2200/- per month, under the influence of her father. No prudent man shall leave the service of the higher pay scale and shall join the service of the lower pay scale. It was further contended by the husband that under the influence of her father, wife neglected the husband. The further case is that wife is residing separately without any cause and reason.
Learned Principal Judge, Family Court, Dehradun has framed three issues in the matter.
As to whether wife is living separately without any appropriate reasons from the husband.
As to whether the applicant is unable to maintain herself and her son, applicant no. 2.
As to whether the applicant is entitled for any maintenance for herself and minor son.
Learned trial Court, while deciding the issue no. 1, has recorded finding of fact that without any sufficient or reasonable cause wife is living separately. Wife has refused to join company of husband despite the fact that husband wanted her to live with him. It was further held by the learned trial court that wife is under the influence of her father and could not prove allegations of bad habits like consumption of alcohol, gambling and adultery against the husband. While deciding the issue nos. 2 and 3, learned trial Court declined to grant any maintenance to the wife on the basis of finding recorded in issue no. 1 and on the ground that wife is employed and getting Rs. 2200/- per month. However, learned trial Court granted Rs. 2000/- per month as maintenance for applicant no. 2, i.e. minor son.
Sub Section 4 of Section 125 Cr.P.C. can be pressed in the present matter, which reads as under: 4
“(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent”.
From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.
I, myself, carefully perused the statements recorded by learned trial court. I find no perversity in the findings of fact recorded by learned Principal Judge, Family Court, Dehradun of the fact that wife is living separately without any sufficient cause and reason and she refused to live with her husband without any sufficient reason. In view of findings that wife is residing separately from her husband without reasonable cause and reason, her application seeking maintenance was rightly rejected by the learned trial Court
Wife is entitled for maintenance from the husband under sub Section a (1) of Section 125 Cr.P.C., if she is unable to maintain herself. As per the admission made by the wife in the application under Section 125 CrPC and as per the finding recorded by the learned Principal Judge, Family Court, Dehradun, wife is employed in a school and getting salary of Rs. 2200/- per month. Revisionist/wife nowhere says that out of this amount of Rs. 2200/- she is unable to maintain herself. On this ground also revisionist is not entitled for any maintenance from the husband.
Having perused the record and findings recorded by the Principal Judge, Family Court, Dehradun, I do not find any valid reason to interfere with the findings of fact recorded by the learned trial Court. The impugned judgment is hereby confirmed. Revision is dismissed.
No order as to costs.
(Alok Singh, J.)
d) POONAM VERSUS MAHENDER KUMAR – P & H High Court
IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc. No.M-24684 of 2008 (O&M)
MAHENDER KUMAR …RESPONDENT
Criminal Misc. No.M-24684 of 2008 (O&M)
Present: Mr.P.L. Goyal, Advocate, for the petitioner.
Mr. S.D. Bansal, Advocate, for the respondent.
Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the same time, affirming the finding recorded by the trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.
I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and have gone through the records of the case.
The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only in getting maintenance allowance and taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.
In view of the above, the present petition is dismissed being without any merit.
March 19 , 2009.
( MOHINDER PAL )