Ajaib Din vs Janki

Harphul Singh Brar, J.—In this Revision Petition, Ajaib Din petitioner has prayed that the judgment dated June 3, 1991 of the learned Additional Sessions Judge, Ropar, be set aside and the order of the Trial Court, i.e. Judicial Magistrate, First Class, Ropar, dated November 30, 1987, be restored.

Janki respondent filed an application u/s 125 of the Code of Criminal Procedure (hereinafter called the Code), alleging therein that she was earlier married with Ram Sarup. From the loins of Ram Sarup, she gave birth to three children and to her ill-luch, Ram Sarup died in 1974. She then stated in the application that after the demise of Ram Sarup, she remarried with Ajaib Din, respondent-petitioner, Ajaib Din is the elder brother of Ram Sarup, her previous husband. It is then alleged in the application that from the loins of Ajaib Din, the present petitioner, she gave birth to a son Hisn Din on May 14, 1977 at Village Kurdi. She has further alleged that from the very beginning of the marriage, the behaviour of respondent-petitioner towards her and her three children from the loins of Ram Sarup, was quite cool dorment. She was subjected to all sorts of cruelty. Ajaib Din used to say that it was only under the pressure of the brotherhood, parents, family members that he had agreed to marry her but actually from the core of his heart he disliked the applicant-Janki. Ultimately she was shown the door from the marital abide by Ajaib Din in three clothes and all her ornaments were retained by him. Despite persuasion by her father and relations, including the respectables, Ajaib Din did not take her back. To the contrary, rather he re-married a Muslim girl Narati from Village Karanpur Jhungian. Thus, she was presently residing with her father having been deserted by Ajaib Din who had neglected to maintain her in spite of repeated demands. Ajaib Din had good source of income and was employed as a Foreman in a factory drawing salary of Rs. 1500/-per month. He was also running a milk dairy from which he was earning Rs. 2,000/- per month. He was also maintaining a motorcycle. She ultimately claimed maintenance from her husband Ajaib Din at the rate of Rs. 300/-per month.

Upon notice of the application filed by Janki, the factum of remarriage with her after the demise of Ram Sarup, brother of Ajaib Din was denied and it was pleaded that she was a woman of easy virtue. She had left the children at the house and went to her parental abode. Two sons and two daughters of the applicant-Janki were residing with Ajaib Din and were maintained by him. It was then pleaded by him that he tried his best to persuade her to come back and look after her children, but to no avail.

In order to substantiate her complaint, Janki appeared as AWI and corroborated the allegations levelled in the complaint. Muhaz Din appeared as AW-2, Abdul Sahib as AW-3 to prove document Exhibit AW-3/A and Nurdin appeared as AW-4. She closed her evidence by tendering into evidence Exhibit A-l certified copy of the birth certificate regarding the birth of a son to her from the loins of Ajaib Din, petitioner in this case, on May 14, 1977.

Against this, the respondent before the Trial Court, i.e. Ajaib Din, petitioner in this case examined Rajinder Singh, RW-1, Parme Kaur, PW-2, Jarnail Singh, RW-3, Ujagar Singh, RW-4, Ajaib Din R-15 and closed his evidence.

The learned Trial Court on the basis of the evidence on record found that a valid marriage had been performed between the parties. However, it was held that Janki had voluntarily withdrawn from the society of her husband Ajaib Din despite his making all-out efforts, persuasion to rehabilitate her and, as such, there was no question of any neglect by Ajaib Din which was sine qua non for claiming maintenance u/s 125 of the Code. Janki's petition was, thus, dismissed.

Aggrieved from the order, dated November 30, 1987 of the learned Trial Court, the petitioner-respondent went in Revision before the Sessions Court.

The learned Additional Sessions Judge, vide his order, dated June 3, 1991, reversed the order of the learned Judicial Magistrate and respondent Janki was awarded Rs. 300/- per month as maintenance allowance to be paid by Ajaib Din, respondent-petitioner from the date of application, i.e. Julyl6, 1987.

Thus, this Revision Petitioner before this Court.

The learned Counsel for the petitioner has argued that it is not proved from the record that after the death of her first husband Ram Sarup, Janki Devi was married to Ajaib Din who happens to be the real younger brother of deceased Ram Sarup. He, thus, contends that when the marriage of petitioner Ajaib Din with Janki is not proved, then an application by Janki u/s 125 of the Code is not competent at all against Ajaib Din. The learned Counsel further contends that apart from this, Janki had left the house of Ajaib Din on her own, though in reality Ajaib Din is maintaining two sons and two daughters of Janki; and he has made his best efforts even now to take her back to his house but to no avail. She is, therefore, not entitled to any maintenance as she has left the house of Ajaib Din on her own without any fault of Ajaib Din. The learned Counsel further relied upon the statement, given in the Court, of one of the daughters of Janki who lives with Ajaib Din that Janki had left the house on her own. Thus, according to him, the judgment of the learned Trial Court is correct, wherein it was held that Ajaib Din had at no time refused or neglected to maintain Janki. Rather, Janki has left the company of Ajaib Din without and valid or just cause.

The arguments of the learned Counsel seem to be attractive are without any force. It has been established from the record of the case but that Janki is validly married to Ajaib Din who happens to be younger brother of Ram Sarup, deceased-husband of Janki. It may be mentioned here that the factum of marriage of the petitioner with respondent Janki has been accepted by the Trial Court and this order of the Trial Court accepting the marriage of petitioner Ajaib Din with respondent Janki has not even been challenged. There is not even any prayer of the petitioner in his petition to set aside the finding of the Trial Judge holding that the marriage between the petitioner and respondent is valid and is proved on the record. Even the ultimate prayer by the petitioner is that the judgment and order of the learned Revisional Court be set aside and the order of the learned Trial Court be restored and, as stated above, the Trial Court has held that a valid marriage had taken place between Ajaib Din and Janki. Even otherwise, the marriage of the petitioner with the respondent is proved on the record from various facts. Birth Certificate, Exhibit A-1, of a son born out of the wedlock of Janki and Ajaib Din has been produced on the file showing that the son is born out of the wedlock of Ajaib Din and Janki. No evidence has been led by the other side to controvert this evidence. Even according to the petitioner. Ram Sarup had died in 1974 and the second child was born to Janki on May 14, 1977 in his own house and it is evident from Exhibit A-l. Thus, there is no doubt that a valid marriage had been performed by the petitioner with the respondent after the expiry of her first husband and the respondent is a legally wedded wife of the petitioner.

The next contention of the learned Counsel for the petitioner saying that Janki has left the house of the petitioner on her own is also without any force. It is an admitted fact that Ajaib Din had contracted another marriage with Narati of Village Karanpur Jhungian on July 1, 1986 and she is still keeping that woman at his house. As such, Janki respondent was entitled to live separately from the petitioner as a matter of right and was also entitled to maintenance allowance.

There is another ground also or the wife to live separately as the husband has levelled false allegations of immorality against his wife.

It is borne out from the record and the arguments of the learned Counsel for the parties that the wife is still ready and willing to live with Ajaib Din if he parts company with the woman whom he has married later on but he is not ready to do so. In these circumstances she has a just cause to live separately from his husband u/s 125 of the Code.

I do not find any fault with the amount of maintenance allowance, that is, Rs. 300/- per month, awarded by the Revisional Court to Janki wife of the petitioner. Though the learned Counsel for the respondent has contended that the petitioner is employed as a Foreman in a factory & drawing Rs. 1500/- per month as his salary in addition to Rs. 2,000/- per month which he is earning by running a milk dairy and is maintaining a motorcycle, yet if that assertion may not be accepted at that still the petitioner is only to be taken as a daily labourer, even then an ordinary labourer is expected to earn about Rs. 40/- to Rs. 50/- per day and under the law, it is moral, social and economic duty of every husband to maintain his legally wedded wife and the petitioner is an able-bodied person. Thus, in these circumstances, I do not find any fault with the finding of the learned Additional Sessions Judge.

In view of my discussion above, this petition is dismissed.

Criminal Miscellaneous No. 3008 of 1992 also stands disposed of accordingly.