Sh. Megh Singh vs Smt. Neelam Kumari and Another

Dev Darshan Sud, J.—This is the respondents petition against the judgment of the learned Sessions Judge, Mandi modifying the judgment and order of the learned Sub Divisional Judicial Magistrate, Gohar, allowing Rs. 500/- per month as maintenance to respondent No. 2 and disallowing the application filed on behalf of respondent No. 2 Neelam Kumari.

Both the respondents had petitioned the trial Court praying for grant of maintenance u/s 125 of the Code of Criminal Procedure. The application was resisted by the respondent on the ground that so far as petitioner No. 1 Neelam Kumari is concerned, she was having illicit relations with another man and had left the house voluntarily and of her own accord. Ex.DW/1 which is a writing was executed by her stating that she was leaving the house of her husband voluntarily of her own accord and will. The learned trial Court, on appreciation of the evidence on record, came to the conclusion that respondent No. 1 was not entitled to any maintenance and granted Rs. 500/- as maintenance to respondent No. 2. Revision petition was preferred by respondent No. 1 Smt. Neelam Kumari and respondent No. 2 Kumari Sonu Devi, which was accepted by learned Sessions Judge. The learned Court holds that allegations of unchastity which are not proved by evidence constitute cruelty giving sufficient ground for the wife to withdraw from the company of her husband. He accordingly allowed the revision petition and granted maintenance of Rs. 500/- each to both the mother and the daughter.

I have heard the learned Counsel for the parties and gone through the record. I do not find that the learned Sessions Judge has in any manner considered the effect of Ex. DW/1 which is a letter written by wife saying that she is leaving the company of her husband of her own accord. Her story to the effect that she was coerced and beaten into signing this document is not borne out from any record.

The learned Court has also glossed over the evidence of RW-1 Kanchan Sharma, who is the daughter staying with the petitioner. The learned Court had put questions to her in order to ascertain her capacity to testify and it is only thereafter that oath was administered to her and her statement recorded. She states in her evidence that respondent No. 1, her mother was in the habit of leaving the house of her own accord despite the fact that the petitioner used to persuade her not to do so. She is also emphatic in her statement that her mother had illicit relations with another person. I do not find that this statement has been properly appreciated by the learned Judge. Merely because this witness had not seen her mother in a compromising position with another person, would not mean that her statement could not be accepted. In the normal course of things, it is but natural that if two persons are having illicit sexual relations they would not leave any evidence. I would not say anything more, but would confine the findings only to the present case. It is true that she does not state the number of occasions when her mother had such relations. In cross examination, to a question, she has given a categoric answer that she was going around with one Yashwant Kumar Sharma who was present with her mother whenever her father would leave for work. I need not say more, lest the statement be interpreted to mean that the parties have been caught in fiagrante delicto. I leave the matter here, but the other part of the statement of this witness that her mother used to leave the house on her own free will despite the fact that she was being stopped by her father, has not been contradicted by any other material on record. In these circumstances, it cannot be held that she had any legitimate cause to withdraw from the company of her husband. A statement coming from the child leveling allegations against her own mother has to be taken with seriousness. In these circumstances, I set aside the judgment and order of the learned Sessions Judge, granting maintenance to Neelam Kumari and hold that she has left the house of her own free will and accord.

Another submission made by learned Counsel for the respondent is that even for the minor daughter, the maintenance is inadequate. In the circumstances, the order of the learned Magistrate is modified to the extent that the daughter shall be entitled to maintenance @ Rs. 700/- per month from the date of this order. The revision petition is disposed of. Pending application(s) shall also stand disposed of. There shall be no order as to costs.