Sunitabai v. Lalu

1. This revision has been filed by the applicants against the order dated 9.9.2003 passed by learned Chief Judicial Magistrate, Barwani in Misc. Criminal Case No. 10/2000 Whereby dismissed the application of the applicants for grant of maintenance under Section 125 of the Cr.P.C.

2. The case of the applicants before the Court below was that applicant No. 1 Sunitabai was married with the non-applicant Lalu according to Hindu custom and performed necessary rituals and "Saptapadi" process was adopted. Out of their wedlock, two daughters, the applicant No. 2, Ku. Komal and No. 3 Ku. Pooja had born. After birth of second daughter, the non-applicant started ill-treatment by making false allegation and also turned her out from the house. On intervention by the neighbourers, the applicant wife was kept by the non-applicant and she lived with him for one and a half years but again two months prior to the date of filing of application, she was turned out. The non-applicant did not allow the applicant No. 1 to take applicant No. 3 Ku. Pooja with her and she had gone to the parents' house with applicant No. 2 daughter Ku. Komal. She has also alleged that on some papers, by use of pressure the non-applicant got her signatures. She sent notice dated 19.1.2000 reply of which was given by the non-applicant, thereafter again she has given notice and the same was also replied. The applicants in total demanded Rs. 2,000/- as maintenance.

3. The non-applicant has submitted his reply and according to him she was not his legally married wife. She was actually married with Kailash S/o Gopalji and obtained divorce according to custom prevalent in their caste. She had obtained cash amount from her husband Kailash in front of the Panchas. After divorce she lodged a false report against her husband Kailash and father-in-law and after taking money, entered into compromise. The applicant No. 1 has suppressed the true fact in her application and wrongly mentioned that they were married according to Hindu religion. She has left his house on 2.1.2000 voluntarily and she was always misbehaving with the non-applicant. She had gone along with her all ornament, clothes and cash amount. She was not performing the duties of a wife. On 2.1.2000 in front of the Panchas of the community she had given divorce to the non-applicant after obtaining Rs. 21,000/-. It was also alleged by the non-applicant that applicant No. 1 Sunitabai tried to administer some poisonous substance to him through one Ramesh.

4. Before the Trial Court, applicant No. 1 Sunitabai has examined herself and her maternal uncle Hukum (A.W. 2) and got proved notices Ex. P. 1, Ex. P.4 and its postal receipt Ex. P.5 sent to the non-applicant. The non-applicant examined himself and Narayan (NAW 2), Kailash (NAW 3), Manaji (NAW 4) and also filed documents Exs. D1 to D8. The learned Trial Court, after detailed appreciation of the evidence, held that the applicant No. 1 wife is voluntarily residing separate from the non-applicant because she has voluntarily executed the deed of divorce Ex. D. 1. She is not the legally married wife of the non-applicant and living separate without any sufficient reasons. According to the statement she had taken one daughter applicant No. 2 Ku. Komal with her and left applicant No. 3 Ku. Pooja with the non-applicant but she initiated the proceeding before the S.D.M. and obtained the custody of applicant No. 3 from the non-applicant. This action of the applicant No. 1 shows that she was not allowing the non-applicant to keep and maintain his daughters and prevented him love and affection of his children. On all these counts, the learned Trial Court has dismissed the application of the applicants.

5. The contention of the learned Counsel for the applicants before this Court is that applicant No. 1 Sunitabai and non-applicant entered into Natra form of marriage prevalent in their custom and thereafter obtained divorce by mutual consent before the Panchas. Therefore, the applicant No. 1 wife and both the children are entitled to get maintenance because the divorced wife is also entitled for maintenance as per provision under Section 125(l)(b) of the Cr.P.C, 1973 from her husband. The learned Counsel has relied on the judgments passed in Dukhia Naik v. Basanti Dei, 1994 Cr. LJ. 1466, Santosh Kumar v. Dhapubai, 1987 (1) MPWN 200, and Vanamala (Smt) v. H.M Ranganatha Bhatta., 1995 (2) MPWN 162.

6. To combat this argument, the learned Counsel for non-applicant has submitted that the applicant No. 1 wife has not come before the Court with a clean hand and suppressed so many material facts. She has not admitted her first marriage with Kailash (NAW 3). She has also not admitted voluntary divorce by executing document Ex. D. 8 before the panchas. She has also denied the divorce given to the non-applicant before the Panchas by executing document Ex. D.1. According to her, the marriage was solemnized following Hindu custom which she has failed to establish. She has not examined any independent witness to prove the marriage. She has also not stated in Court about form of marriage with the non-applicant and whether "Saptapadi" was performed or not. Her evidence in Court is contrary to her pleading in the application. Lastly the learned Counsel has strongly supported the order dismissing application of the applicants by the Trial Court.

7. Having heard the learned Counsel for parties and after perusing the entire record, this Court is of the opinion that applicant No. I/wife is not entitled for any maintenance because according to her application she was married with non-applicant, according to Hindu custom and she has not adduced any evidence for this purpose. She has specifically denied her first marriage with Kailash (NAW 3) who has specifically stated in Court that he was married with applicant No. 1 Sunitabai and she was frequently going to her parents' house. She was also picking up quarrel with him and she had asked for divorce. On refusal by him, she lodged a false report against him in the police station and thereafter compelled him to give divorce. Therefore, they entered into mutual divorce before the Panchas by executing document Ex. D. 8 and she had taken her all Streedhan (Dahage) and also he had paid Rs. 3,100/- to her which was fixed by the Panchas. On perusal of this document (Ex. D. 8), it is crystal clear that the signature of the applicant No. 1 Sunitabai is present on this document. The Panchas have also signed on this document but the applicant No. 1 Sunitabai has denied this fact and also given same kind of suggestion to her first husband Kailash (NAW 3). There is no reason for Kailash to speak lie against applicant No. 1 Sunitabai. He has also deposed that the applicant No. 1 was having quarrelsome nature. This fact has been duly corroborated by the statements of Lalu (NAW 1) and Narayan (NAW 2). The applicant has also denied about receiving Rs. 21,000/- before execution of document of divorce Ex. D. 1 before the Panchas. This fact has been stated consistently by the non-applicant and his all witnesses. According to this Court, on the basis of evidence on record, it is amply proved that the applicant No. 1 Sunitabai firstly married with Kailash (NAW 3), thereafter divorced him by executing document (Ex. D. 8) and obtained Rs. 3,100/- from him. Thereafter she entered into marriage in a Natra form with the non-applicant and after few years divorced him by executing document Ex. D.1 before the Panchas and obtained Rs. 21,000/- from him. The facts of payment of money are not mentioned in both the divorce documents but the witnesses have stated that according to their caste custom such fact is never written in the divorce between the husband and wife, husband is required to pay the lumpsum amount to the wife and in the instant case non-applicant had paid the same.

8. In the-light of these factual position, when applicant No. 1 Sunitabai voluntarily left the company of the non-applicant without any sufficient cause and suppressing the true facts about her first marriage, thereafter divorce and also given divorce to the non-applicant by executing document of divorce deed before the Panchas according to custom, she is not entitled to get maintenance because it cannot be said that the applicant No. 1 Sunitabai was having sufficient cause to live separate from husband and husband was neglecting her and not maintaining her. The judgments relied upon by the learned Counsel for applicants in Dukhia Naik, Santosh Kumar and Vanamala (supra), are perused.

9. In Ditkhia Naik's case (supra), the Orissa High Court has held that when parties exchange garlands in temple and some Poojas performed, thereafter they lived together as husband and wife for nearly three years is sufficient to establish factum of valid marriage. This judgment is not helpful to the applicant No. 1 Sunitabai because she has not proved any kind of performance of ceremonies. In her statement, she has stated only this much that she was married with the non-applicant before 8-9 years from the date of recording of her statement before the Trial Court on 17.12.2002. She has also denied about divorce with the non-applicant and execution of document Ex. D.1. Her witness Hukum (A.W. 2) has also not stated anything about performance of any Pooja, garlanding or "Saptapadi". He has also denied about first marriage of the applicant No. 1 Sunitabai with Kailash, thereafter divorce to him and also divorce to the non-applicant by executing documents Ex. D. 8 and D. 1 respectively. Therefore, the applicant No. 1 Sunitabai and her witness have not explained the true facts clearly before the Court. The other judgments Santosh Kumar and Vanamala (supra) are also not helpful to the applicant No. 1 Sunitabai on the ground that even after divorce wife is entitled for maintenance. It was not at all her case. Her case was that non-applicant was her first husband and she never divorced her. Therefore, in view of these pleadings and evidence, she is not entitled to get maintenance. The burden is on her to establish her case by preponderance of probability but she has not proved the same and as a matter of fact denied positive fact of her first marriage with Kailash and thereafter divorce with him.

10. On going through the pleading and evidence on record, there is no dispute between the parties that applicants No. 2 Ku. Komal and No. 3 Ku. Pooja are born out of the wedlock of applicant No. 1 Sunitabai and non-applicant and at present residing with applicant No. 1 Sunitabai and non-applicant did not take up any legal proceeding to take them back and to maintain them. Therefore, even if the applicant No. 1 Sunitabai was not the legally married wife of the non-applicant but both the applicants No. 2 Ku. Komal and Ku. Pooja are born out of their cohabitation, hence, they are entitled to get maintenance till attaining majority. The non-applicant has filed certified copy of land record (Ex. D.6) and (Ex. D.7) showing the fact that he has now 4.80 acres of land. Looking to the fact that non-applicant has entered into marriage with another woman and having one issue as well as looking to his financial condition and responsibility, it would be just and proper to direct him to pay the maintenance of Rs. 250/- (Rupees two hundred and fifty) to each daughter i.e., applicants No. 2 Ku. Komal and No. 3 Ku. Pooja from the date of passing of order by the learned Lower Court dated 9.9.2003.

11. The revision is partly allowed on the terms indicated hereinabove.