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Ravinder Nath Sharma Vs. Nirmal Sharma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 137 of 1982
Judge
Reported in27(1985)DLT490; 1985(9)DRJ128
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantRavinder Nath Sharma
RespondentNirmal Sharma
Advocates: Swaran Mahajan and; J.L. Kalra, Advs
Cases ReferredIn Chander Parkash Bodh Raj v. Smt. Shila Rani Chander Parkash
Excerpt:
.....proceedings. code of criminal procedure - section 397(1)--the inclusion of the word 'correctness' in section 397(1) gives sufficient powers to the session judge sitting in revision to interfere with the findings of the trial court in reapprising the evidence and to come to a different conclusion. - - (4) it was alleged that the husband failed to maintain her and their minor child since 29th august, 1977 and the wife and the child had no source of income whereas the husband being employed as junior invigilator in the department of statistics, government of india, patel bhawan, new delhi, was receiving a monthly salary of rs. under section 488(3), criminal procedure code .it is permissible to the court to make an order of maintenance even if the husband offers to maintain his wife on..........sharma and nagesh sharma challenging the magistrate's order and the revision was accepted by the learned additional sessions judge delhi and setting aside the order of the learned magistrate, maintenance at the rate of rs 300.00 per month and rs. 100.00 per month was allowed respectively to nirmal sharma and her minor son nagesh sharma w.e.f. 29th october, 1977, the date of making the petition under section 125 of the code. (2) feeling aggrieved with the aforesaid order of the learned additional sessions judge, ravinder nath sharma has filed this criminal revision in the high court and has alleged the same as erroneous. (3) ravinder nath sharma (hereinafter to be referred to as the husband) was married to smt. nirmal sharma (hereinafter to be referred to as the wife) on 26th june, 1972.....
Judgment:

Jagdish Chandra, J.

(1) A petition under section 125 of the Criminal Procedure Code (hereinafter to be referred to as the Code) was brought by Smt. Nirmal Sharma and her son Nagesh Sharma (alias Rinkoo) against Ravinder Nath Sharma for maintenance for herself and her minor son Nagesh Sharma and which was dismissed vide judgment dated 3rd June, 1981 by the learned Metropolitan Magistrate. A criminal revision being No. 36/81 was filed by Nirmal Sharma and Nagesh Sharma challenging the magistrate's order and the revision was accepted by the learned Additional Sessions Judge Delhi and setting aside the order of the learned magistrate, maintenance at the rate of Rs 300.00 per month and Rs. 100.00 per month was allowed respectively to Nirmal Sharma and her minor son Nagesh Sharma w.e.f. 29th October, 1977, the date of making the petition under section 125 of the Code.

(2) Feeling aggrieved with the aforesaid order of the learned Additional Sessions Judge, Ravinder Nath Sharma has filed this criminal revision in the High Court and has alleged the same as erroneous.

(3) Ravinder Nath Sharma (hereinafter to be referred to as the husband) was married to Smt. Nirmal Sharma (hereinafter to be referred to as the wife) on 26th June, 1972 at Delhi according to Hindu rites and out of the wedlock Nagesh Sharma alias Rinkoo was born to them The case of the wife against the husband, as disclosed from her petition under section 125 of the Code was that she was turned out of the matrimonial home by the petitioner after giving her severe beating on 29th August 1977 since when she and her minor son Nagesh Sharma have been living with the father of the wife. The reason alleged by the wife for her turning out from matrimonial home was that on that day the husband had demanded a sum of Rs. 2000.00 to be brought by her from her parents and the wife declined to oblige him asserting that her parents were not in a position to give her that amount whereupon the husband, his father and his sister gave to the wife merciless beating with lathi blows and then turned her out of their house. The wife lodged a report with the police post Rajouri Garden, New Delhi, vide Dd No. 51 dated 29th August, 1977 and she also sent complaints to D.S.P. and S P. (Crime Branch) and various other authorities including the Station House Officer, New Delhi, but without any fruitful result.

(4) It was alleged that the husband failed to maintain her and their minor child since 29th August, 1977 and the wife and the child had no source of income whereas the husband being employed as Junior Invigilator in the Department of Statistics, Government of India, Patel Bhawan, New Delhi, was receiving a monthly salary of Rs. 1000.00 with those averments the wife claimed maintenance for herself and her child at the rate of Rs. 500.00 and Rs. 200.00 per month respectively.

(5) On the other hand, the husband in reply to the petition under Section 125 denied the wife having been beaten and turned out of the matrimonial home by asserting to the contrary that the wife left the matrimonial home of her own with cash and jewellery and other articles in the absence of the husband and that she is residing with her parents on one pretext or the other and there was great interference on the part of the father of the wife in the domestic affairs of the husband. The alleged demand of Rs. 2000.00 was also controverter. The husband further asserted that father of the wife had business in which the wife was an active partner and her father wanted that the wife should live near his house so as to lend him helping hand in the business. He also averred that despite repeated efforts on his part as also on the part of his parents to bring the wife and the child back, he was not allowed to see the child and that the petition under Section 125 was designed only as a pressure tactics on the husband by the wife and her parents in their ulterior motive aforesaid. The report lodged with the police by the wife is alleged to be false and lodged with the help of her father. An allegation was also made against the wife that she was not living in decency.

(6) The learned Magistrate dismissed the wife's petition for maintenance finding that the incident of 29th August 1977 regarding beating and turning out from the matrimonial home did not occur and that she left the matrimonial home of her own and did not return on being persuaded and there was absence of proof of refusal or neglect on the part of the husband to maintain her. He pointed out certain discrepancies regarding the beatings and the weapon of beating used by the husband and his parents and sisters and further found the medical certificate showing injuries on her person as bogus. He also held as inadmissible in evidence in this case the statement of the husband to the police recorded under Section 161 of the Code during investigation of the police report lodged by the wife on 29th August 1977 regarding her beatings at the hands of her husband and other near relations.

(7) The learned Additional Sessions Judge accepted the criminal revision No. 36/81 of the wife filed against the order of the learned Magistrate, observing that the statement of the husband recorded by the police under Section 161 Criminal Procedure Code . during investigation of the police report lodged on 29th August 1977 by the wife in respect of her beatings at the hands of the husband was admissible in evidence the material portion of which being 'A' to 'A' to the effect that he have 2/3 slaps to the wife on 29th August, 1977, as admitted by the husband during his cross-examination in the witness box. The learned Additional Sessions Judge was impressed by this subsequent admission on the part of the husband regarding the happening of 29th August, 1977 and the categorical denial on the part of the husband in his written statement as also in his testimony in the witness box regarding any such incident having taken place on that day and consequently held that the version put forth by the wife that she was given beatings and turned out of the matrimonial home on 29th August 1977 by the husband must be accepted as correct, and admittedly no maintenance as such having ever been offered to be paid to the wife and the child by the husband after 29th August, 1977, the refusal and neglect on his part to maintain the wife and the child stood established.

(8) The learned Additional Sessions Judge also observed that the husband had deliberately attributed immorality falsely to the wife which by itself amounted to legal cruelty and entitled the wife to live separately from the husband and also to claim maintenance from him.

(9) Taking the total salary of the husband as Rs. 900.00 per month, as admitted by the husband in his cross-examination, the learned Additional Sessions Judge allowed maintenance to the wife and the child at the rates of Rs. 300.00 and Rs. 100.00 per month respectively.

(10) The learned counsel for the husband contended that the learned Additional-Sessions Judge, exercising powers of revision, could not reappraise the evidence so as to come to a finding different from the one given by the learned magistrate unless and until the finding of the learned magistrate was perverse. She also pointed out that the statement Ex. Rw I/PA in which the husband had admitted that he had given 2/3 slaps to the wife, before the police under Section 161 of the Code during investigation of the report lodged by the wife with the police, was not admissible into evidence being barred under Section 162 of the Code and making use of the same by the learned Additional Sessions Judge in coming to the conclusion aforesaid regarding the occurrence of beating having taken place on 29th August 1977 was against the aforesaid provision of law and thus could not come to a conclusion different from that of the learned Magistrate in respect of the beating incident of 29th August 1977, whereas the learned Magistrate was correct in excluding from consideration Ex. RWI/PA and the aforesaid admission of the husband contained therein regarding his having given 2/3 slaps to the wife. Section 397 of the Code reads as follows :

'397(1)The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.'

(11) The inclusion of the word 'correctness' used in the aforesaid provision of law pertaining to the powers of revision of the Sessions Judge is quite meaningful and is sufficient to repudiate the aforesaid contention of the learned counsel for the husband regarding the power of interference in revision by the learned Additional Sessions Judge, when he found admissible the aforesaid admission of the husband of giving 2/3 slaps to the wife on 29th August, 1977 and also found the discrepancies referred to and relied upon by the learned Magistrate as minor. It is only when two views are equally possible from the reappraisal of evidence on the records of a case that the finding given by a lower court cannot be reversed by a higher court in revision on the basis of the other possible view, but when correctness in a sufficient measure is visible from reappraisal of evidence in the other view not taken by the lower court, the higher court in revision can certainly upset the finding of the lower court and if this has been done by the learned Additional Sessions Judge, there is nothing wrong with the same.

(12) The scope of the statement recorded under Section 162 of the Code is quite unmistakably clear from the plain wordings of Section 162(1) which reads as follows :

'162(1)No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

(13) The statement Ex. Rw I/PA made by the husband before the police during investigation of the case registered on the report of the wife regarding the beating incident of 29th August, 1977 would be barred at any inquiry or trial in respect of that offence under investigation at the time when such statement was made, and the aforesaid bar is relaxed to some extent in the proviso to Section 162(1) for the purpose of contradicting the maker of such statement in the manner provided by Section 145 of the Indian Evidence Act, 1872. As no inquiry or trial in respect of any offence under investigation at the time when that statement was made by the husband took place the question of bar of the admissibility into evidence of that statement did not and could not arise as the bar could operate only during inquiry or trial in respect of that offence which was under investigation. The aforesaid bar does not extend to such statements in any other proceedings or cases as the present one under Section 125 oF the Code. The authorities Podda Narayana and others v. State oJ'AndhraPradesh. : AIR1975SC1252 ; Mrs. Shakila Khader etc v.Nausher Gama and another, : AIR1975SC1324 and Hazari Lal v. The State (Delhi Admn.) : 1980CriLJ564 relied upon by the learned counsel for the husband are of no avail to her for the reason that those were cases of trial oF those very offences which were under investigation at the time when the statements under Section 161 of the Code were made. So, the factum of the admissibility of the statement Ex. Rw I/PA including the admission of the husband regarding his having given 2/3 slaps to the wife could vitally impress the learned Additional Sessions Judge especially when the husband and categorically denied in the written statement as also in his testimony in the witness box that any such incident had taken place on that day.

(14) Ex Public Witness 5/A is the report recorded by the police post Rajouri Garden on 29th August 1977 at the instance of the wife regarding her beatings at the hands of the husband and his near relations and turning her out of the matrimonial home on that very day Another report Ex. Public Witness 2/A addressed to D Sp Punjabi Bagh, New Delhi, by the wife regarding the bearing occurrence of 29th August 1977 does not bear any date but there appear endorsements of 10th September, 1977 regarding the copy thereof having been received. So, probably this written complaint to D.S.P. Punjabi Bagh appears to have been filed on 10th September 1977 or a day earlier and not on 29th August 1977 the day of occurrence. The fact that report was lodged with the police of police post, Rajouri Garden by the wife on the very day of occurrence i.e 28th August, 1977 takes away the infirmity if the written complaint Ex. Public Witness 2/A was made to D.S.P. Punjabi Bagh not on that very day but subsequently. The wife went to the police but police did not bother to send her to 'police hospital for her medical examination regarding injuries and that could be no fault of the wife if the police happened to be negligent. She then went to Aggarwal Nursing Home, Rajouri Garden, New Delhi, at about 8 P.M on that very day i.e. 29th August, 1977 as deposed to by Mr. Radhey Shyam Agarwal Public Witness 4 of the said Nursing Home The patient card pertaining to the wife and issued by the aforesaid Nursing Home is also dated 29th August, 1977 wherein there is mention of severe pain in the shoulder, front and back side of the chest as also swelling, tenderness etc. There are two receipts Ex. Public Witness 4/B and Ex. Public Witness 4/C both of the next day i.e. 30th August, 1977 issued by the said Nursing Home. Ex. Public Witness 4/B pertains to the payment of the consultation fee Rs. 20.00 and Ex. Public Witness 4/C pertaining lo the payment of Rs. 60.00 on account of X-Ray of skull and shoulder of the wife. There is nothing wrong if the X-Ray was done the next day of the beating incident as the patient went to the Nursing Home at 8 P.M. on 29th August, 1977 and Ex. Public Witness 4/B evidencing the payment of a sum of Rs. 20.00 consultation fee appears to be of the next date for the reason, as stated by Dr. Agarwal Public Witness 4, that the receptionist in his Nursing Home comes at 8 A.M. and works up to 4 P.M. and the register is filled next morning. It is quite possible that when the wife came to this Nursing Home at 8 P.M. on 29th August 1977, the consultation fee receipt of the next date was given to her the next day. Regarding the entry dated 29th August, 1977 pertaining to the wife in the patients' register maintained in this Nursing Home being the last entry for the month of in the Nursing Home being the last entry for the month of August 1977 Dr. Aggarwal stated that on the remaining two days of the month of August 1977 i.e. on 30th August, 1977 and 31st August, 1977 no new patient had come to the O.P.D. in the Nursing Home. Thus, for the aforesaid reasons the learned Additional Sessions Judge could be justified in looking upon the discrepancies which weighed with the learned Magistrate, as minor.

(15) It looks quite difficult to disagree with the finding of the learned Additional Sessions Judge on the question of the beating incident of 29th August, 1977 and the turning out of the wife from the matrimonial home and the consequent neglect and refusal on the part of the husband to maintain the wife, which factors entitled the wife and her child to the maintenance allowance, and the learned Additional Sessions Judge was entitled to come to the aforesaid correct finding in the exercise of his revisional jurisdiction under Section 397 of the Code.

(16) During the pendency of the case before the learned Magistrate the husband had made an offer to the wife to maintain her on the condition if she returned to the matrimonial home. Had this offer of the husband been genuine the wife would not have been entitled to the grant of maintenance allowance. But that offer on the part of the husband does not appear to be genuine for the reason that he had alleged in his written statement that the wife was not living in decency and thus castigated her character and even in her cross-examination as Public Witness 2 a suggestion was put to her which she stated as incorrect that there was any complaint against her character and in that very context she was immediately put a further question if she knew any persons by the names Om and Ravi Nath Sharma. The allegations against her character do not appear to be genuine for the reason that the husband in his cross-examination as Rw I categorically denied that there was any complaint against the wife's character or there used to be any quarrel between them regarding her character About the two persons Om and Ravi Nath the husband stated that the former was the wife's cousin and the latter an employee in the factory of her father. There is no evidence on the records of the case to substantiate the allegations against the character of the wife. It, thus, means that during the pendency of the case the offer made on the part of the husband to the wife to return to the matrimonial home where he would provide her maintenance, was not genuine and the wife could not be expected to act or rely upon the same as it was simply a device to evade the payment of maintenance. It has been held in Madan Lal v. Smt. Rajni Bala etc. Vol. 72 1970 PunJ L. R 12 (Delhi Section) that where the petitioner had during the proceedings, made a false accusation adultery, the offer to take the wife back was not a genuine one and it was a device to evade the payment of maintenance and further that the aforesaid fact constituted a sufficient cause for the wife to live separately from her husband and a false accusation of adultery was a just ground for a wife declining to stay with her husband. In Chander Parkash Bodh Raj v. Smt. Shila Rani Chander Parkash, : AIR1968Delhi174 , in the petition under Section 488 of the previous Code of Criminal Procedure 1898, the husband made a formal application offering to keep his wife in his house and on that ground it was urged that the wife's petition for maintenance should be dismissed, it was held as follows :

'...THEhusband has at the stage of his evidence, as mentioned earlier, made an accusation of adultery against the wife and if on account of this accusation, which is denied by the wife and was not even contained in his reply, the wife declines to go and live with the husband, she is, in my opinion, amply justified in doing so. But this apart, the offer seems to me to be far from genuine and bona fide, and coming, as it does, only in answer to the present claim, it creates an impression of its being a mere device to avoid the liability of maintenance in these proceedings. Under Section 488(3), Criminal Procedure Code . it is permissible to the Court to make an order of maintenance even if the husband offers to maintain his wife on the condition of her living with him, if the Court is satisfied that there is just ground for doing so. In the present case, I have no hesitation in holding that the wife has a just ground for declining to live with the husband if he has no scruple in making the accusation of adultery against her on oath in Court.'

(17) Keeping in view the aforesaid two authorities wherein the offer on the part of the husband to maintain the wife on the condition of her returning to the matrimonial home, in the circumstances almost similar to the one attending the husband's offer in the case in hand, the husband's offer cannot be said to be genuine and thus the wife is entitled to live separately from the husband and is nevertheless entitled to the maintenance allowance for herself as also for her minor son Nagesh Sharma (alias Rinkoo).

(18) In view of the aforesaid discussion, there appears no justification to interfere with the findings of the learned Additional Sessions Judge whose order appears to be sound and correct as against the order of the learned Magistrate which had held as inadmissible the admission of the husband in his statement recorded by the police under Section 161 of the Code and had also relied upon the minor discrepencies as a result of which there was miscarriage of justice which was removed by the impugned order passed by the learned Additional Sessions Judge.

(19) The quantum of maintenance allowance assessed by the learned Additional Sessions Judge at Rs. 300.00 per month for the wife and Rs. 100.00 for her minor son Nagesh Sharma (alias Rinkoo) was also assailed by the learned counsel for the petitioner. The learned Additional Sessions Judge took into consideration the husband's salary at Rs. 900.00 at his own word in his cross-examination who had stated his total salary as ranging from Rs. 850.00 to Rs. 900.00 but had stated further that his net salary actually received by him was Rs. 725.00 per month, but had cot given the details of deductions nor had put in his salary certificate. The quantum of maintenance allowance fixed by the learned Additional Sessions Judge looks quite reasonably and calls for no interference.

(20) In view of what has been stated above, the revision petition of the husband fails and is dismissed leaving, however, the parties to bear their own costs.


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