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Harbans Kaur Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision Petition No. 80 of 1985
Judge
Reported in1985(2)WLN451
AppellantHarbans Kaur
RespondentState of Rajasthan
Excerpt:
.....without giving opportunity to explain them--held, appreciation of evidence is faulty ; the learned magistrate has ignored this principle enshrined in section 145 of the evidence act also and has used the omissions and contradictions without providing opportunity to the witness to explain them. therefore, also his appreciation of the evidence is faulty.;(c) criminal procedure code - section 125--cruelty for refusing to live with husband--standard of proof--magistrate requiring proof beyond all reasonable doubts as required for conviction in criminal trials--held, magistrate's approach is improper and cannot be sustained.; the learned magistrate, has proceeded to consider the evidence as if the cruelty, the ground for the wife for refusing to go with the husband, had to be proved..........specifying what those means are.3. after taking the evidence of the parties and hearing them, the learned magistrate, came to the conclusion that the petitioner herself had refused without any reasonable cause to live with the non-petitioner despite his offer to maintain her on the condition of her living with him. he was of the opinion that the petitioner had failed to establish the cruelty alleged by her. he was further of the view that in the proceedings under section 24 of the hindu marriage act, the learned district judge had held that the petitioner had sufficient means to maintain herself and, therefore, also in view of this finding, she is not entitled to any maintenance under section 125 cr.p.c. he, accordingly, dismissed her application. it is against this order of the learned.....
Judgment:

Klshore Sihgh Lodha, J.

1. The petitioner Harbans Kaur had moved an application Under Section 125 Cr.P.C claiming maintenance from her husband alleging that the parties had married about 13 months prior to the filing of this application and they lived together for about 11 months where after the non-petitioner took her to her father's house and left her there. It was also alleged that during the time the petitioner lived with her husband, the non-petitioner's sisters used to scold her on the ground that she had brought very little dowery. The non-petitioner also used to beat her on this ground. It was also alleged that he was in the habit of drinking and torturing the petitioner and at times even did not provide her with food. Her case further was that he used of demand for further dowery in the form of hard cash amounting to Rs. 10,000/-, a radio set a motor cycle and other articles and when the petitioner showed her inability to comply with his demands, he used to beat her. At last, the petitioner was forced to assure the non-petitioner that on the next harvest, he may take her to her father's place and there she may get the things demanded by him. The case of the petitioner further was that about 2-1/4 months before the filing of the application, the non-petitioner took her to her father's house. There the petitioner tried to convince him that whatever her father could have given, he has already given but the non-petitioner got annoyed with her and gave her a blow with a burning log of wood, as a result of which, her body was scorched and her right hand got fractured. The petitioner goes on to allege that after giving her this beating, the non-petitioner told her that he will take another wife and that he has already left her. She also alleged that even thereafter, her father with other members of the Panchayat went to the house of the non-petitioner to request him to take her back but he refused. Her case further was that the non-petitioner had never cared for her maintenance and she has no indepedent means to maintain herself. On account of the ignorance or refusal of the non-petitioner to maintain her, she was entitled to claim maintenance Under Section 125 Cr.P.C and she claimed a sum of Rs. 400/- p.m.

2. In reply, the husband non-petitioner admitted the fact of marriage but denied the other allegations against him. He alleged that he had kept the petitioner with love and care and was still prepared to keep her with him but she had refused to live with him without any reasonable cause. He also alleged that the petitioner's father wanted to keep the non-petitioner as his 'Ghar Janwai' to which he was not agreeable and when he declined to do so, the petitioner's brother Prasan Singh got annoyed and wanted to burn him alive with a burning log of wood on which the petitioner intervened. He also alleged that he, was ready to take the petitioner back and had also taken the Panchayat to the petitioner's father's house but they refused to send her and the petitioner also declined to come with him. He also alleged that the petitioner's father had two Murabbas of canal land and the petitioner herself had sufficient means to maintain herself, of course, without specifying what those means are.

3. After taking the evidence of the parties and hearing them, the learned Magistrate, came to the conclusion that the petitioner herself had refused without any reasonable cause to live with the non-petitioner despite his offer to maintain her on the condition of her living with him. He was of the opinion that the petitioner had failed to establish the cruelty alleged by her. He was further of the view that in the proceedings Under Section 24 of the Hindu Marriage Act, the learned District Judge had held that the petitioner had sufficient means to maintain herself and, therefore, also in view of this finding, she is not entitled to any maintenance Under Section 125 Cr.P.C. He, accordingly, dismissed her application. It is against this order of the learned Munsif & Judl. Magistrate, Srikaranpur, dated 18-12-84 that the petitioner has filed the present revision.

4. I have heard the learned counsel for the parties and have gone through the record.

5. The contentions have been raised before me by the learned counsel for the petitioner. His first contention is that the learned Magistrate has approached the case from a wholly wrong angle and has taken into consideration inadmissible evidence in arriving at the conclusion that the petitioner had failed to prove cruelty as any other reasonable ground of her refusal to live with her husband and, therefore, his order is vitiated. His second contention is that so far as the finding that the petitioner has sufficient means to maintain herself goes, the learned Magistrate has simply relied upon the order of the learned District Judge Under Section 24 of the Hindu Marriage Act, which itself was a subject matter of revision before this Court and was not a final order. The learned counsel for the non-petitioner, on the other hand, has supported the order of the learned Magistrate.

6. I have given my careful consideration to the rival contentions. I shall take up the second contention first. As pointed out by the learned counsel for the petitioner, the revision against the order of the learned District Judge dated 4-8-83 Under Section 24 of the Act was pending before this Court when the learned Magistrate happened to pass the order Under Section 125 Cr.P.C. Now that revision has been diposed of by me today by a separate order and the order of the learned District Judge has been set aside. Therefore, the very basis of second finding of the learned Magistrate that the petitioner has sufficient means to maintain herself has diappeared.

7. Coming to the first contention, it may at once be stated that the approach of the learned Magistrate does not at all appear to be correct and proper. He has rejected the evidence of the petitioner mainly on the ground that she is the petitioner herself and her statement is not corroborated by independent witness and the witnesses who have been produced are her relations. He has further rejected evidence of the petitioner on certain omissions or contradictions, which were never put to her during her cross-examination. A few extracts from the order of the learned Magistrate will bear it out. While beginning to consider the evidence of the petitioner Harbans Kaur, the learned Magistrate observes:

eq gjcU'k dkSj ih- M-&1 dk dFku gS fd llqjky es mldh uun o lkl de ngst ykus ds lEcU/k es rkuk nsrh Fkh ijUrq mlds dFkuks dh iqf'V vU; fdlh xokg dh lk{; ls ugh gksrh gS Amlus U;k;y; ds le{k vius c;ku es mldh lkl }kjk ngst de ykus ds ckcr mykguk nsus dk dFku fy[kk x;k tcfd vius izkFkZuk i= es bl izdkj dk vfHkdFku ugh fd;k A lk;yk us vius tckc izkFkZuki= es ;g dFku fd;k gS fd xSjlk;y dh nksuks cgus de ngst nsus vkSj lqUnj ugh gksus ds lEcU/k es mls rkuk nsrh FkhA ijUrq U;k;ky; ds le{k vius c;ku es bldh iqf'V ugh dh A mlus izkFkZuk i= es dFku fd;k fd xSjlk;y us llqjky es mls Hkkstu rd ugh fn;k] ijUrq U;k;ky; ds le{k vius c;ku es mlus bl izdkj dk dFku ugh fd;k A lk;yk us vius izkFkZuk i= es ;g Hkh dFku fd;k fd xSjlk;y us llqjky es mls jkstuk 'kjkc ihdj ekjihV djrk Fkk ijUrq mlds dFkuks dh iqf'V es vU; fdlh xokg dh lk{; gekjs le{k ugh gS A Loa; lk;yk us U;k;ky; ds le{k vius c;ku es xSjlk;y }kjk jkstkuk llqjky es mlds lkFk ekjihV djus dk dFku ugh fd;k A bl izdkj xSjlk;y }kjk lk;yk ds lkFk xzke eksMk es ekjihV djuk vkSj ngst ds ckcr mls ijs'kku djus ds lEcU/k es lk;yk dk dFku fujk/kkj gks tkrk gSA

8. Similarly, he has rejected the evidence of the other witnesses merely because they happered to be the relations or residents of her village e.g. her brother Prasan Singh and the residents of her village Jaswant Singh, Gaj Singh and Dungar Singh.

9. While considering the question whether the petitioner's hand had been fractured by the blow given by the non-petitioner, the learned Magistrate observes that the petitioner, her brother and her mother who have deposed to this also admit that she had taken treatment from a private doctor but they have not given the name and description of that doctor.

10. Now, a party in proceeding of such a nature is a competent witness and its statement has to be taken on its normal worth and it cannot be rejected merely on the ground that it is a statement of a party to the litigation itself. Similarly, in matrimonial matters, it is only the near relations of the parties or their close friends and associates, who can be expected to be acquainted with the facts relating to the parties and, therefore, their statements also cannot be discarded merely on the ground that they are relations or are friendly to the parties concerned. That evidence also has to be considered on its normal merits and de-merits and it cannot be discarded merely on the ground that it is a partisan evidence. It is this aspect of the matter, which the learned Magistrate has completely ignored and has rejected the evidence mostly on these grounds.

11. So far as contradictions and material omissions are concerned, they can be used to discredit a witness only after the attention of the witness is drawn to them and he is given an opportunity to explain the same. Here the learned Magistrate has ignored this principle enshrined in s. 145 of the Evidence Act also and has used the omissions and contradictions without providing opportunity to the witness to explain them. Therefore, also his appreciation of the evidence is faulty.

12. Again the main consideration before the learned Magistrate was whether there was just ground for wife to refuse to live with her husband. But the learned Magistrate, has proceeded to consider the evidence as if the cruelty the ground for the wife for refusing to go with the husband, had to be proved beyond all reasonable doubts as is required for the conviction in a criminal offence. In these circumstances, I am of the opinion that the approach of the learned Magistrate being improper his order cannot be sustained. I would have appreciated the evidence myself but I have refrained from doing so, because the other grounds for rejecting the application viz. that the wife had sufficient means to maintain herself having disappeared on the order Under Section 24 Hindu Marriage Act being set aside, the learned Magistrate will have to decide that question also on the appreciation of evidence in this case and he may as well reappreciate the whole evidence.

13. I, therefore, set aside the order of the learned Munsif & Judicial Magistrate, Srikaranpur, dated 18-12-84 and send the case back him for disposal in accordance with law keeping in view the observations made above. The parties are directed to appear before the learned Magistrate on 26-8-85.


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