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Hemchandra Shridhar Nair Vs. Hemangi Hemchandra Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 338 of 1981
Judge
Reported in1982(1)BomCR777
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125; Constitution of India - Article 227
AppellantHemchandra Shridhar Nair
RespondentHemangi Hemchandra Nair and anr.
Appellant AdvocateG.R. Rege, Adv.
Respondent AdvocateB.U. Trivedi, Adv. for respondent No. 1; S.B. Patil, P.P.
Excerpt:
.....must fail on the ground that the respondent-wife has not alleged in his application that she is unable to maintain herself and there is also no evidence to this effect. in this case, the respondent-wife has specifically stated in paragraph 14 of her application under section 125 of the code of criminal procedure as follows :14. the respondent has failed maintain me from the day he has driven me out. in all these judgments it appears that it was an admitted position that there was no averment in the applications made by the concerned wife at all of the kind and on the basis of that if the three learned judges of this court have chosen to take a view that the applications under section 125 of the code made by the concerned wife must fail on that ground. as i am hearing this petition..........this case. the above averment, in my opinion, is sufficiently adequate to show that the respondent-wife is unable to maintain herself. section 125 of the code of criminal procedure uses the words 'unable to maintain herself'. the meaning of these words 'unable to maintain herself' is that she is unable to live on her own and if that is so, i do not find any justification in the contention raised by the learned advocate for the petitioner that the averment is not made in the application to that effect. in this connection the learned advocate for the petitioner relied on certain judgments of this court reported (1) in kewaldas pandurang awale v. kunda kewaldas awale 1982 mh.l.j. 167, (2) smt. sarasvatibai dattatraya v. dattatraya bhimrao monnur and another, 1979 bom.c.r. 393, and (3).....
Judgment:

S.J. Deshpande, J.

1. This is a petition under Article 227 of the Constitution of India filed by the husband challenging the order passed by the learned Additional Sessions Judge, Bombay on December 12, 1980 in Criminal Revision Application No. 226 of 1980.

2. The respondent-wife made an application against the petitioner-husband claiming maintenance under section 125 of the Code of Criminal Procedure. The rate of maintenance demanded by her was Rs. 300/- per month. It was averred by the respondent-wife that the marriage between the parties took place on November 27, 1978 at Bombay. They were residing together for some months. It was alleged that the petitioner-husband was on visiting terms with one lady named Meera. The respondent-wife object to his relationship with Meera. The petitioner got annoyed. The members of the family of the petitioner also humiliated her. The first respondent wife was ill-treated and ultimately in June 1979 she was taken to his village by the petitioner and left there. The petitioner did not turn up to take her back. With the help of paternal uncle of the first respondent, she made an attempt to enter the matrimonial house, but she was refused by the petitioner and thereafter the first respondent-wife was physically driven out of the house with a threat not to return back. It is alleged that the respondent-wife was also threatened by the petitioner that if she returned he will commit suicide. It is also alleged that since that day the respondent-wife is living in Bapnu Ghar. It is averred that the petitioner-husband is in service photo phone Private Limited Company and gets monthly income of Rs. 750/-. The respondent-wife claimed a sum of Rs. 300/- per month showing ability to maintain her. This application was filed on September 26, 1979.

3. The application was resisted by the husband-petitioner. There is no specific plea stating that the application made by the wife suffers from omissions to allege that she is unable to maintain herself. The petitioner denied all the allegations. He also denied that he has got relationship with Meera. The petitioner complained that the wife could not adjust herself with the of the petitioner. He also showed his willingness to take her back on condition that she gives an assurance for her behaviour. Lastly, the petitioner prayed for dismissal of the application.

4. In support of the case, the respondent-wife examined herself and the petitioner also entered the box. The learned Magistrate after going through the evidence on record has found that the petitioner has not maintained the wife and he neglected the respondent-wife and refused to maintain her. The Magistrate was also relied on a letter written by the father of the wife and relying on the statement of the petitioner himself that if the respondent- wife wants to enter the house she can only enter if she gives proper guarantee for her behaviour. The learned Magistrate allowed the application and granted maintenance of Rs. 200/- per month. This order was passed on April 11, 1980.

5. The petitioner-husband filed revision against this order before the learned Sessions Judge at Bombay. The petitioner-husband engaged his Advocate. On the date of hearing of the revision i.e. on December 12, 1980, the petitioner as well as his Advocate were absent and the revisional Court had itself taken the responsibility of examining the record and the revisional Court found relying on the admission in the cross-examination of the petitioner that he has visiting terms with Meera for the last 15 years although he denied the suggestion that he has got illicit connection with Meera. The revisional Court agreed with the trial Court and found that from the evidence of these witnesses it is established that she was ill-treated and perhaps assaulted by the husband. The revisional Court finally confirmed the order of the Magistrate and dismissed the revision application, by his order dated December 12,1980.

6. The petitioner-husband filed the present revision against this order passed by the learned Sessions Judge invoking the powers of this Court under Article 227 of the Constitution of India. At the out set I may point out that I would have dismissed this application in limine on the simple ground that both the courts below have concurrently found that the wife is entitled to maintenance. It would not be proper to exercise jurisdiction muchless extraordinary jurisdiction of this Court to interfere in such matters which are left by the Legislature to the final judgments of the courts below. It is true that the jurisdiction of this Court under Article 227 of the Constitution of India is very wide and very large. It is neither appellate jurisdiction nor revisional jurisdiction. It is a special extraordinary supervisory jurisdiction invested in this Court, to correct flagrant violation of law or cure substantial miscarriage of justice. The jurisdiction can be invoked only in extraordinary cases where the courts below have acted in disregard of the provisions of law or have refused to follow jurisdiction which does not vest in them. It is impossible to say that in such cases, the Magistrate and the learned Sessions Judge have no jurisdiction to deal with the matter, even if their findings both on law and facts or for a moment, taken to be wrong, mere erroneous, decisions on facts and law will not furnish any ground for any applicant to move the High Court for exercising extraordinary under Article 227 of the Constitution of India. Therefore, it would be proper if in such cases the High Court acts with some self-imposed limitation and self-restraint and I am giving this preface only to show that in the judgments of the courts below I do not find any such error which would permit this Court to interfere in the decisions made by the courts below.

7. The learned Advocate for the petitioner Mr. Rege, however, first of all contended that the revision application was heard by the learned Sessions Judge in his absence when petitioner was absent and his Advocate was misled by the board of the Sessions Court. According to the learned Advocate, the board which was displayed shows that the date for this case was fixed not before December 15, 1980, while the case was taken for hearing on the earlier date i.e. on 12th December, 1980. On this ground the learned Advocate for the petitioner contended that the judgment was given by the revisional Court without giving hearing to the petitioner, and therefore, it is wrong in law. I may point out here straightway that under Criminal Procedure Code when the revisional jurisdiction is invited by the litigant it is not as a matter of right but it is discretionary power vested in the Court to examine the proceedings of the courts below in certain circumstances. If the petitioner or his Advocate is heard and system has develop and we have been following that the Advocates are present and the petitioners are present, they are heard in the interest of justice. But there is no obligation on the Court to wait for the party in revisional jurisdiction. The Court can itself examine the record and the petitioner cannot blame as a matter of right of not hearing if he choose to remain absent. In this case I from the record that although the affidavit of the Advocate is filed on record to show that the dates which were shown on the board were misleading it is unfortunate that the petitioner should have persuaded his Advocate to make an affidavit which appears to be in conflict with the report submitted by the learned Sessions Judge. In this case a report was called from the Additional Sessions Judge to find out the truth of the averment made in the petition in connection with the dates which were mentioned on the board. The report of the Sessions Judge shows that there was no such mistake in showing the dates on the board. I accept the statement of the learned Sessions Judge made in the report and, therefore, this grievance that the petitioner was not heard because of the fault of the board is not correct.

8. It is true that the courts are not supposed to decide the matters in the absence of the parties or their Advocates, but then it is also equally true that the advocates who themselves filed the petitions and especially when they are appearing before the revisional Court it is desirable that some responsibility is attached to them also. In this case I find that the board was properly displayed for the various cases and there was no justification whatsoever for the petitioner or his advocate to remain absent. In such circumstances, if the revisional Court proceeds to examine the record of the case it does not commit any illegality and, therefore, in my opinion, the learned Sessions Judge was justified in examining the record of the case and coming to the conclusion on the basis of the record in the case.

9. In order to do the justice to the parties, at the request of the Counsel the petitioner Mr. Rege, I allowed him to read the evidence in this case and I have myself heard the Counsel and on the evidence and on the pleadings of the parties. The learned Advocate Mr. Rege first of all argued that the application filed by the first respondent must fail on the ground that the respondent-wife has not alleged in his application that she is unable to maintain herself and there is also no evidence to this effect. In this case, the respondent-wife has specifically stated in paragraph 14 of her application under section 125 of the Code of Criminal Procedure as follows :

'14. The respondent has failed maintain me from the day he has driven me out. I am unable to live on my own, as I do not work anywhere. I live on charity. I presently reside at Bapnu Ghar'.

The argument advanced by the learned Advocate for the petitioner that there is no averment in the specific words that she is unable to maintain herself, is not supported factually in this case. The above averment, in my opinion, is sufficiently adequate to show that the respondent-wife is unable to maintain herself. Section 125 of the Code of Criminal Procedure uses the words 'unable to maintain herself'. The meaning of these words 'unable to maintain herself' is that she is unable to live on her own and if that is so, I do not find any justification in the contention raised by the learned Advocate for the petitioner that the averment is not made in the application to that effect. In this connection the learned Advocate for the petitioner relied on certain judgments of this Court reported (1) in Kewaldas Pandurang Awale v. Kunda Kewaldas Awale 1982 Mh.L.J. 167, (2) Smt. Sarasvatibai Dattatraya v. Dattatraya Bhimrao Monnur and another, 1979 Bom.C.R. 393, and (3) Marotrao Baburao Chaudhari v. Chandrakanta and another, : 1982(2)BomCR94 . All these three judgments are delivered by this High Court, when my brother Judges were exercising jurisdiction sitting singly. In all these judgments it appears that it was an admitted position that there was no averment in the applications made by the concerned wife at all of the kind and on the basis of that if the three learned Judges of this Court have chosen to take a view that the applications under section 125 of the Code made by the concerned wife must fail on that ground. I do not think, how these judgments should be relevant to support the contention as raised by the petitioner in this case.

10. There is one judgment of our High Court also which contrary view and that is reported in Vimal Sukumar Patil v. Sukumar Anna Patil and another, 1981 Bom.C.R. 494. This judgment is delivered to my brother Dharmadhikari, J., and the specific question which was raised in that case was that the expression of the words 'unable to maintain herself' came for consideration. This expression has been interpreted by this Court saying that the expression 'unable to maintain herself' has nothing to do with the potential earning capacity. The reasoning in the said judgment is based on the pronouncement of the Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, : 1979CriLJ3 . In this case, the Supreme Court was dealing with the provisions of section 125 of the Code of Criminal Procedure. Section 125 is enacted only to save starving children, parents and wives. It starts with the word maintenance. The very meaning of the word maintenance does mean only to provide breathing spur to live, but it includes clothes and food. If the section 125 is widely interpreted, even the provisions of that section provide other alimonies also. Strictly speaking, the word 'maintenance' itself is very eloquent to express that it is a speedy remedy given to starving wives, children and parents, so that they may not go astray. Supreme Court has emphasized social purpose pervading this section. Bearing in mind the ruling of the Supreme Court it is desirable to remember that this section is not meant for hair splitting discussion on question of law or spread elaborate canvas of all facts such as trial or proceedings in a civil suit. The purpose of the section is to provide a quick remedy. This is measure of social justice and specially enacted to protect the starving wives, children and parents. Therefore, the meaning which is to be given to this section must be founded on the sufficient relevance of primary facts of living, while making orders which are passed under this section. In my opinion, the argument advanced on behalf of the petitioner is not justified. As in this case there is averment, which I have quoted above, I do not see any reason to follow the authorities cited above. The question as to whether the wife is unable to maintain herself will have to be decided having regard to the facts and circumstances of each case. No general rule can be laid down in this behalf, nor it is advisable to lay down any general rule. It cannot also be forgotten that it is not the mere form, but substance of the matter which will have to be looked into and no undue or exaggerated importance could be attached to the form or words, and expression used by the wife in her application or in her evidence. It is admitted position that there is nothing on record to show that as a matter of fact she was earning anything or had other sources of livelihood. If at all, 1 have to express myself that I am fully in agreement with the view taken by my learned brother Dharmadhikari, J. I also propose to follow the Karnataka High Court's judgment, which was pointed to me by the learned Public Prosecutor during the hearing of this case. It is repotted in Smt. Malan v. Baburao Yeshvant Jadhav 1981 Cri.LJ. 184 where the Division Bench of the Karnataka High Court has interpreted this section 125 of the Criminal Procedure Code and the judgment goes on to say that :

'Where the wife has stated in her evidence that she has no income, that she needs the amount for her food, clothes and that she has no residence, it can be said that she is unable to maintain herself. Merely because the wife has not averred in her petition that she was unable to maintain herself, her petition cannot be dismissed. Section 125 of the new Code does not require that the wife should plead in her petition that she is unable to maintain herself. It is for both the parties to adduce evidence on that point and it is for the Court to decide whether the wife is able or unable to maintain herself. The wife is only required to prove neglect or refusal by the husband.'

From the said observations, if the wife says that the husband has neglected of refused to maintain her, it is sufficient compliance of section 125 of the Code.

11. The learned Advocate for the petitioner rightly stressed that in view of the conflicting judgments of this Court, I should refer this matter to the larger Bench. It is true that when there are differing judgments of the same Court and conflicting opinions, then the matter should have been referred to the larger Bench. As I am hearing this petition under Article 227 of the Constitution of India and as I have show above that in exceptional circumstances this Court will interfere with the orders, I do not think. I can accept the prayer made by the learned Advocate for the petitioner. There are two reasons for this in this case. First of all there is such an averment in the petition itself and, therefore, the authorities cited by the learned Advocate Mr. Rege are of no assistance to the petitioner. In my opinion, as I am using discretionary power under Article 227 of Constitution of India, I propose to follow the judgment of this Court and, therefore, I do not see any justification to refer the matter to the larger Bench.

12. Then, the learned Advocate for the petitioner pointed out that on evidence also there is no basis to hold that the respondent-wife has proved that she is unable to maintain or live on her own. The Advocate for the petitioner read out to me the evidence and it is true in her evidence in specific words it does not appear that the respondent-wife has stated in any where that she is unable to maintain herself. But in my opinion, the same principle which was enunciated by the Supreme Court while interpreting this section will be applicable even to the interpretation of evidence in such cases. The respondent wife has stated in her evidence as under :

'I went to reside with father's sister's house after I was driven out in August 1979. As my father's sister was poor I went to reside at Bapnu Ghar. The respondent (petitioner in this case) refused to take me from Bapnu Ghar when social worker tried to persuade him. I was driven out of my house after beating me'.

It is true that there is no specific deposition stating that she is unable to maintain herself. But mere absence of this in the deposition will not disentitle the wife for the simple reason that the evidence of the respondent wife will have to be considered as a whole. In my opinion, when both the courts below have already given finding, for a while, I assume that it is incorrect finding, though it is not, it would not be permissible for me to reverse that finding on such minor omissions. The findings on evidence are conclusive and binding as far as Article 227 of the Constitution of India is concerned. I do not see any justification for reviewing findings made by the learned Sessions Judge as well as the learned Magistrate. I have given full hearing to the leaned Advocate for the petitioner and also allowed him to read the whole evidence even in an application under Article 227 of the Constitution of India, because in this case a grievance was made that the petitioner and his Advocate were not given opportunity to hear and otherwise I would not have reappreciate the evidence and examine the record in exercise of powers under Article 227 of the Constitution of India. Therefore, this argument of the learned Advocate for the petitioner is also rejected.

13. Then it was argued by the learned Advocate for the petitioner that the respondent wife has not proved that the petitioner had kept any mistress and he invited my attention to the Explanation to section 125(3) of the Code, which reads as under :

'125(3)..................

Explanation.---If a husband has contracted marriage with another woman or keeps mistress, it shall be considered to be just ground for his wife's refusal to live with him.'

The learned Advocate for the petitioner invited my attention to the evidence in this case saying that the petitioner-husband was in visiting terms with Meera. The petitioner-husband has admitted in his cross-examination that one Meera resides in his building and he is on visiting terms with her for the last 15 years. It is true that the respondent-wife has not proved the petitioner husband has kept a mistress. But then the grievance of the respondent wife was that as a result of visiting terms with Meera, she had every reason to suspect her husband's loyalty to her. There is in this case an evidence, on record that the husband had stopped talking with the respondent wife after few months of her marriage. It is true that the courts below have accepted the evidence to the extent that the husband must be on visiting terms with Meera, but in my opinion, this would not disentitle the petitioner to grant maintenance. The reason for explanation is that this would constitute that keeping a mistress itself is sufficient to constitute refusal to live with the wife. This is one of the grounds. Section 125 mentions various grounds. The first ground is that she is unable to maintain herself. Second ground is that refusal to live with the husband also provides a ground for separate residence. In this case, we are not concerned with the ground of separate residence at all. Refusal to live has been given statutory representation on the footing that if it is proved that the husband contracts a marriage with another woman or keeps a mistress, it shall be considered just a ground for wife's refusal to live with him. I am not considering this argument in detail because it is not the ground on which the maintenance has been granted to the respondent wife. In this case, the learned Sessions Judge in para 6 of his judgment has discussed this aspect of the case and on referring to the admission in the cross-examination of the husband, the learned Sessions Judge has provisionally found that the evidence established that the petitioner-husband must have illicit connection with other lady. In my opinion, from the evidence, which was led before the courts below, if it was found acceptable to them, for the purposes of this application, it cannot be said that they were not entitled to consider it, If that was considered by them and they have found sufficient justification to accept it, then it should be a factual ground. If the learned Sessions has accepted the same. I do not see any justification to disagree with his view.

14. It is true that in matters of maintenance this Court will have to bear in mind the legislative intent for which the provisions of section 125 are enacted. Section 125 only contemplates two orders either dismissal of the petition if there is no proof of evidence or grant of maintenance. This is monthly maintenance and as the ground is only dismissal in the sense that in the circumstances it can also be reviewed and if the parties approach to the Civil Court this can also re-examine. The purpose of the section 125 is to provide maintenance to the starving persons mentioned in that section. Under this section the Magistrate can award maintenance only and nothing else, and if that is so, I do not see any reason to interfere with such orders which are based on evidence on record and otherwise not vitiated by any illegality whatsoever. Maintenance is not intended to ensure complete amenities to the persons concerned. The very purpose of maintenance is that it is a kind of allowance to starving persons and it would include all other necessaries which may require. If that is the condition of that allowance and as the Court has made the order, I do not see how the orders passed by the Magistrate as well as revisional Court can ever be re-opined for the purposes of wholesale re-examination and finding out the justification or otherwise. As I have stated above, the petition under Article 227 of the Constitution of India was heard by me at length only because the Advocate for the petitioner pointed out to me the infirmity in the judgment of the Sessions Court to the effect that he was not given hearing. After hearing the Advocate for the petitioner and going through the evidence on record, I am satisfied that there is no illegality or any grave irregularity committed by the courts below.

15. Before making the final order, the learned Advocate for the petitioner mentioned to me that he has a grievance about the quantum of maintenance that the salary of the petitioner-husband is only Rs. 600/- per month and 1/3rd of it comes to Rs. 200/- which is granted by the courts below. According to the contention of the learned Advocate for the petitioner, this sum is very large amount and the quantum should be re-examined by me. There is no brought before me to show that the petitioner husband is otherwise not able to give this much amount. I do not see any reason to interfere with the quantum granted by the courts below we. Therefore, again, I do not find any justification to examine the quantum granted by the courts below.

16. In the result, the rule is discharged with no order as to costs and the orders passed by the courts below are confirmed.


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