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Madan Lal Vs. Rajni Bala Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 106 of 1969
Judge
Reported in6(1970)DLT21
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488
AppellantMadan Lal
RespondentRajni Bala Etc.
Advocates: C.P. Wig and; K.B. Kalra, Advs
Cases ReferredPheku Singh v. Attiraja Kunwar It
Excerpt:
a) in the instant case the husband offered to his wife back to the matrimonial house and at the same time allegation of adultery were leveled on her - it was held that under 488 of the criminal procedure code, 1908 such offer was nto genuine but instead a device to avoid payment of maintenance.b) the court ruled that there was a sufficient cause for the wife to live separately from her husband - a false accusation of adultery was a just cause for wife to decline to stay with the husband and also entitled her to receive maintenance from him. - - the petitioner asserted that he was working as tyre-inspector in good year factory at balabgarh......of an application, filed under section 488, code of criminal procedure, against the petitioner by rajni bala respondent claiming maintenance for herself and her minor daughter babli bhalla, respondent. (2) i he allegations made in the application were to the following effect. rajni bala was married to the petitioner on the 13th december, 1965, in accordance with hindu rites. out of the wedlock, babli bhalla, respondent was born and was 15 months' old on the date of the making of the application. the minor daughter was residing with her mother rajni bala. the petitioner his brother and his mother indulged in the sale of illicit liquor and had asked rajni bala to co-operate with them in selling illicit liquor. on her refusal, rajni bala was beaten and maltreated. in the first week of.....
Judgment:

Om Parkash, J.

(1) This reference made by the learned Additional Sessions Judge has arisen out of an application, filed under section 488, Code of Criminal Procedure, against the petitioner by Rajni Bala respondent claiming maintenance for herself and her minor daughter Babli Bhalla, respondent.

(2) I he allegations made in the application were to the following effect. Rajni Bala was married to the petitioner on the 13th December, 1965, in accordance with Hindu rites. Out of the wedlock, Babli Bhalla, respondent was born and was 15 months' old on the date of the making of the application. The minor daughter was residing with her mother Rajni Bala. The petitioner his brother and his mother indulged in the sale of illicit liquor and had asked Rajni Bala to co-operate with them in selling illicit liquor. On her refusal, Rajni Bala was beaten and maltreated. In the first week of April, 1967, Rajni Bala. was mercilessly beaten by the petitioner and his inother and brother as she had objected to the petitioner's trading in illicit liquor. Rajni Bala had, tired of beating and maltreatment left the house of her husband on the 8th April, J 967. She had, on that date, lodged a report at the Police Station Karolbagh. Rajni Bala's father had also filed a report at the same police station alleging that the petitioner was carrying on trade in illicit liquor. The petitioner's house was raided and the petitioner and his brother were challaned under section 61 of the Punjab Excise Act. Rajni Bald prayed that she and her daughter may be granted maintenance at the rate of Rs. 150.00 per month.

(3) The petitioner contested the application. He admitted that Rajni Bala was married to him on the 13th December, 1965, and that Babli Bhalla respondent was born out of the wedlock. The petitioner denied the alligations about beating and maltreatment. He, further, denied that he was carrying on the trade of illicit liquor. The petitioner asserted that he was working as Tyre-Inspector in Good Year Factory at Balabgarh. The petitioner admitted that a case under section 61, Punjab Excise Act, was filed against him, his brother and father but pleaded that all of them had been acquitted as the case was a false one. The petitioner, further, pleaded that Rajni Bala had left his house of her own accord and in his absence and had taken away all the ornaments. As Rajni Bala had left the company of the petitioner, without any reason she according to the petitioner was nto entitled to any maintenance.

(4) After recording the evidence of the parties, the Sub-Divisional Magistrate held that the petitioner indulged in the sale of illicit liquor and that he wanted Rajni Bala to cooperate with him and that oh her refusal the petitioner, his brother and his mother had given her beating and Rajni Bala was forced to leave the house. It appears that though no plea was taken in the written statement that Rajni Bala was unchaste yet during the course of her cross-examination, questions were put to her suggesting that she hid illicit connections with her maternal uncle's son. The Sub-Divisional Magistrate rejected the plea of the petitioner put forth during cross-examination that Rajni Bala was unchaste. The Sub-Divisional Magistrate held that the petitioner who had sufficient means had willfully neglected to maintain Rajni Bala and her daughter. The Sub Divisional Magistrate allowed Rajni Bala and her daughter a maintenance allowance of Rs. 100.00 per month.

(5) Aggrieved by the order of the Sub-Divisional Magistrate, the petitioner went up in revision. The learned Additional Sessions Judge, who had heard the revision petition, permitted the petitioner to put in a copy of the judgment in a case under section 76, Indian Penal Code, in which Rajni Bala had figured as prosceutrix. It appears that in pursuance of that order the petitioner nto only put in a copy of the judgment but also put in a copy of the statement made by Rajni Bala in the case. On the basis of the evidence, adduced before the Sub Divisional Magistrate and the copies of the judgment and the statement put in before him, the learned Additional Sessions Judge held that Rajni Bala was nto a woman of clear antecedents and that she was nto justified in keeping away from her husband's house. He rejected the plea of Rajni Bala that she had been maltreated and beaten. The learned Additional Sessions Judge was of the view that as Rajni Bala had refused to live with her husband without sufficient cause, she was nto entitled to claim maintenance and that maintenance could be awarded only to the minor daughter. He assessed the maintenance allowance for the minor daughter at Rs. 40.00 per month. The learned Additional Sessions Judge has made a reference to this Court with the recommendation that order of the Sub-Divisional Magistrate may be modified to the effect that Rajni Bala is nto entitled to any maintenance under section 48S, Code of Criminal Procedure', while Babli Bhalla alona is entitled to maintenance at the rate of Rs. 40.00 per month.

(6) The reference has been supported on behalf of the petitioner while it has been opposed on behalf of Rajni Bala.

(7) Maintenance, under section 483, Code of Criminal Procedure, can be allowed to a wife if her husband having, sufficient means neglects or refuses to maintain her. In the present case, both the Courts below have held that the petitioner has sufficient means. That finding has nto been challenged before me. The only point which requires decision is whether the petitioner had neglected or refused to maintain Rajni Bala. It is admitted that Rajni Bala is residing with her father since the 8th April, 1967. The plea of Rajni Bala is that she was being beaten and maltreated and was made to leave the house while the plea of the petitioner is that she had left his house of her own accord and without his consent. The oral evidence adduced by Rajni Bala, to the effect that she had been beaten was of no assistance as none of the witnesses belonged to the locality in which the house of the petitioner was situated. But there is one significant fact. Rajni Bala had lodged a report with the police on the 8th April 1967. That report is Exhibit P W. 6/A. In that report, she had alleged that the petitioner was indulging in the sale of illicit liquor and on her refusal to cooperate in that nefarious trade, she was beaten by the petitioner and other members of his family. Faqir Chand, father of Rajni Bala, had lodged the report Exhibit Public Witness 2/A to the same effect. The house of the petitioner was raided on the 11th April, 1967. As a result of the raid, the police had put up a challan under section 61, Punjab Excise Act, against the petitioner, his brother and father.

(8) The petitioner and his co-accused were acquitted. The acquittal did nto wipe out the fact that Rajni Bala and her father had logged reports on the 8th April, 1967, making allegations that the petitioner was trading in illicit liquor and on refusal of Rajni Bala to cooperte in selling liquor, she had been maltreated, and that the house of the petitioner was raided by the police as a consequence of the reports. It is also to be pointed out that one of the witnesses of the petitioner Behari Lal R.W. 2-stated in the examination-in-chief itself that there were quarrels between the petitioner and Rajni Bala and that the petitioner did nto permit Rajni Bala to go to the house of her father as he suspected that she had illicit connection with her maternal uncle's son. It is clear that Rajni Bala had been forced to leave the matrimonial house on the 8th April, 1967. The petitioner has admittedly nto maintained Rajni Bala after that. The petitioner has neglected to maintain Rajni Bala.

(9) It was contended, on behalf of the petitioner, that Rajni Bala was nto entitled to get maintenance as she was living in adultery or at least was living separate from the petitioner without sufficient cause. The plea that Ra]'ni Bala was living in adultery had nto been taken up by the petitioner in his written statement. No evidence was led by the petitioner on the point. Only during the crossexamination of Rajni Bala, suggestion was made to her that she had illicit connection with Anand Sarup, her maternal uncle's son. Rajni Bala had denied the suggestion. In the revision petition before the learned Additional Sessions Judge, the petitioner was permitted to put in a copy of the judgment in a case under section 376, Indian Penal Code, wherein Rajni Bala was the prosecutrix. The petitioner, nto only put in the copy of the Judgment but also put in copy of the statement, made by Rajni Bala in that cast. It is nto clear how the copy of the statement had been put in when the order permitted only the putting in of a copy of the judgment. The learned counsel for Rajni Bala had attacked the order of the learned Additional Sessions Judge permitting the filing copy of the judgment on the ground that the learned Additional Sessions Judge had no jurisdiction to allow additional evidence. The learned counsel further, argued that no opportunity was given to Rajni Bala to rebut the additional evidence and that that evidence should be excluded from consideration, It is nto necessary to go into the points raised by the learned counsel as, even if the judgment and the statement be read as evidence, they do nto prove that Rajni Bala was living in adultery. The expression living in adultery' in section 4884). Code of Criminal Procedure means existing and habitual adultery and nto mersly an occassional lapse or past misconduct, vide Ram Saran Parshotam Dass v Smt. Soman Wati. The judgment and the statement . only show that Rajni Bala had alleged that Anand Sarup had committed sexual intercourse with her. Anand Sarup was given the benefit of doubt and acquitted. Assuming that Anand Sarup had committed sexual intercourse with Rajni Bala on the night of the 3rd December, 1964, that would only constitute an occasional lapse by Rajni Bala and that to belore her marriage with the petitioner which had taken place on the 13th December, 1965. There is no evidence that Rajni Bala had been carrying on with Anand Sarup after the marriage. The petitioner had tailed to prove that Rajni Bala was living in adultery.

(10) It has already been shown that Rajni Bala had been maltreated by the the petitioner. The petitioner had also, during the proceedings, made a false, charge of adultery against Rajni Bala. The above facts constituted a sufficient case for Rajni Bala to live separate from the petitioner. A false accusation of adultery is a just ground for a wife declining to stay with her husband (vide Chander Parkash Bodh Raj v. Smt. Shila Rani. It was contended, on behalf of the petitioner, that he had offered to maintain Rajni Bala provided she lived with him, but that Rajni Bala had rejected the offer and was not, thereforee, entitled to receive maintenance. The question is whether the offer was a geniune and bona fide one. The petitioner had, during the proceedings, made a false accusation of adultery. In the same breath, he had made an offer to maintain her on the condition that she should come back to live with him. It is quite obvious that the offer to take Rajni Bala back was nto a genuine one. It was a device to evade the payment of maintenance. Reference in this connection may be made to Pheku Singh v. Attiraja Kunwar It is also to be pointed out that the petitioner had filed an application for restitution of conjugal rights against Rajni Bala. An interim order for payment of Rs 60 per mensem as maintenance was passed against the petitioner. The petitioner did nto comply with the order and gto the application for the restitution of conjugal rights dismissed. Had the petitioner been anxious that Rajni Bala should live with him he would nto have gto the application for restitution of conjuga rights dismissed, but would have pursued it to the end. This fact also shows that the offer made by the petitioner, during the proceedings of the application under section 488, Code of Criminal Procedure, was nto a genguine one.

(11) As the petitioner, who had sufficient means, had neglected to maintain his wife Rajni Pala ard her minor daughter Babli Bhalla, the Sub-Divisional Magistrate was right in awarding maintenance of Rs.100per monsem. The reference made by the learned Additional Sessions Judge for modifying the older of the Sub-Divisional Magistrate is rejected. The revision petition filed by the petitioner will stand dismissed. The order of the Sub-Divisional Magistrate granting maintenance allowance of Rs. 100.00 per mensem to Rajni Bala and the minor daughter Babli Bhalla will stand.


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