Sunday, 18 November 2012

Appreciation of evidence in maintenance case of keeping of concubine

 In case of maintenance under this particular provision of the Act. i.e. under Section 125 of the Code, the Courts should not be too rigid, dogmatic and technical in evaluating the overall evidence on record on the contrary, the whole approach should be pragmatic, keeping in view the status of the parties, the social environment in which they live and their illiteracy and backwardness, if any. In the instant case, it may well be remembered that the parties are village-folk belonging to the backward society and living in the backward region of Bastar District of the State. Evidence of such simple witnesses is often crude and earthy; and does not generally have the gingerly quality and finesse which is characteristic only, of the urban society and the social elite.
 Anyway, the respondent's father NAW-2 Balram has admitted that Mst. Bodebai is living in his house, but he has deposed that she is living there only as a domestic servant. From his evidence, itself, it is clear that Mst. Bodebai is living in that house since that very time, when the respondent's wife Mst. Radhamani was also living there. The tenor of Balram's evidence and equally so, of the respondent himself, fairly indicates that Mst. Bodebai was not kept in the house as a domestic servant. It does not stand to reason that the respondent and his father, with a meagrely status in life as they have, could afford to keep a domestic servant in their house. Reading the whole evidence on either side, the trial Court's finding appears to be correct that the respondent had brought Mst. Bodebai to live with him in his parental house by way of his own mistress

Madhya Pradesh High Court
Smt. Radhamani vs Sonu on 23 January, 1985
Equivalent citations: 1986 CriLJ 1129

1. This is the wife's revision against the dismissal of her claim under Section 125 of the Criminal P.C. 1973, by the Additional Sessions Judge, Bastar, for her own maintenance and for the maintenance of her two minor children.
2. The factum of lawful marriage between the parties according to the Hindu Rites and customs about 15 years back from now, is admitted; and so also, the fact that the two minor children Salindhar (aged Now 9 years) and Gohindu (aged Now 7 years), who were born out of their lawful wedlock, are living at present, with the applicant Mst. Radhamani at the latter's father's place (Para 1 of the petition). The respondent husband is employed in Madhya Pradesh Electricity Board as a helper on the monthly salary of Rs. 600/-.
3. According to the wife's petition, the respondent-husband, about two years before the presentation of the petition, had turned out his wife and his two minor children from his parental house and had left them to their own lot, and since then the applicant-wife along with the children is living at her parental house. The respondent-husband was alleged to have brought one woman Mst. Bodebai and to have kept her with him as his wife or concubine. It was alleged that the wife had no source of income for her own maintenance and that of her children; and the respondent-husband was responsible for their maintenance. Considering the income of the husband, total monthly maintenance amount of Rs. 250/- was claimed for her maintenance and for her two children.
4. The respondent-husband, refuting the allegations of the petitioner, contended that Mst. Bodebai had been kept by his parents, only as a house-maid and not as his wife or concubine. The wife was stated to have left her husband's home along with her children of her own accord, after quarreling with the respondent's mother. She was never turned out from the house of the respondent; and the respondent was always prepared to take her back and the children, but there was refusal on the wife's part in this regard, despite attempts to bring her back. The wife was also stated to have illegal connections with her sister's husband Lekhan.
5. The trial Court believing the evidence on the wife's side, had allowed the petition by awarding total monthly maintenance amount of Rs. 200/- for the wife and her two children. The lower Rsvisional Court, after re-evaluating the evidence over again, has set aside the trial Court's order for grant of maintenance and has dismissed the wife's claim for maintenance. It has been held by the lower Revisional Court that the wife had failed to establish that she had been deserted and neglected by her husband or that, the husband had taken any other woman as his wife.
5A. Now, in the present revision, the learned Counsel for the applicant-wife has urged that there is clear proof on record regarding the husband's neglect and also regarding taking a woman as a second wife or concubine, as such, it is prayed that grant of maintenance, as allowed by the trial Court, deserves to be restored, after setting aside the lower revisional Court's order. The respondent's learned Counsel has, however, adopted the same reasonings as the lower revisional Court has, for disallowing the claim, as laid.
6. I have considered the evidence on record of the trial Court in the light of judgments of the two Courts below who have respectively appreciated the evidence in their own manner, contrary to each other, with the result, that on the same evidence, the trial Court allowed the maintenance, and the lower revisional Court rejected it. As a matter of fact, the trial Court's appreciation of evidence should not, normally be interfered with, by the Revisional Court unless there is perversity in appreciation or there is injudicious approach to the appreciation of facts, as deposed to, by the witnesses. It is unfortunate that in the present case, the lower revisional Court has appreciated the evidence, adduced in the trial Court, quite differently from the approach made by the trial Court itself, who had the opportunity to appreciate the evidence more authentically since the parties and the witnesses were themselves present in that Court and had deposed in its very presence.
6A. In case of maintenance under this particular provision of the Act. i.e. under Section 125 of the Code, the Courts should not be too rigid, dogmatic and technical in evaluating the overall evidence on record on the contrary, the whole approach should be pragmatic, keeping in view the status of the parties, the social environment in which they live and their illiteracy and backwardness, if any. In the instant case, it may well be remembered that the parties are village-folk belonging to the backward society and living in the backward region of Bastar District of the State. Evidence of such simple witnesses is often crude and earthy; and does not generally have the gingerly quality and finesse which is characteristic only, of the urban society and the social elite.
7. The wife, in her petition (para 2), had specifically alleged that the respondent-husband had kept one Mst. Bodebai as his mistress. This allegation had been denied by the "respondent in his reply, by contending, that after the wife had left his home, his parents had kept Mst. Bodebai in the house, only as a maid servant for domestic chores (para 5.) The wife Mst. Radhamani, in her evidence as AW-1 and so also the other witnesses AW-2 Mitthuram, and AW-4 Mahgu have deposed that Mst. Bodebai is living in the respondent's parental house. The respondent-husband, in his averment as NAW-1 is not found to have stated a single word regarding Mst. Bodebai in his examination in chief. It is only in cross-examination that he is found to have denied the fact that any woman, Mst. Bodebai or any other, had come to live in his parental house. He does not even admit this fact that Mst. Bodebai is living either at the new place of his service at Bakawad or is living in his parental house at Kudalgaon. The respondent, however, has tried to improve and embellish his version by giving further evidence of his own in the lower revisional Court for which there is no justification.
8. Anyway, the respondent's father NAW-2 Balram has admitted that Mst. Bodebai is living in his house, but he has deposed that she is living there only as a domestic servant. From his evidence, itself, it is clear that Mst. Bodebai is living in that house since that very time, when the respondent's wife Mst. Radhamani was also living there. The tenor of Balram's evidence and equally so, of the respondent himself, fairly indicates that Mst. Bodebai was not kept in the house as a domestic servant. It does not stand to reason that the respondent and his father, with a meagrely status in life as they have, could afford to keep a domestic servant in their house. Reading the whole evidence on either side, the trial Court's finding appears to be correct that the respondent had brought Mst. Bodebai to live with him in his parental house by way of his own mistress. There does not appear to be any justification for the lower revisional Court for interference with this finding of the trial Court. I find myself in full agreement with the trial Court's finding in this regard. The applicant-wife is obviously found to have fall justification, in not living with the husband, since the husband had kept Mst. Bodebai as his mistress in the said house. On this ground alone, the wife would be entitled to maintenance against the respondent-husband.
9. As for the 'cruelty', the wife had deposed that her father-in-law and mother-in-law were source of continuous torture to her. Even the husband in para 2 of his reply,: has admitted the fact that there used to be quarrel between his wife and his own mother, and for this reason, the wife had left the house to live with her own parents. The tyranny of mother-in-law over the daughter-in-law is a proverbial theme of discord in Hindu house hold,' as in the instant case; and therefore, the wife was, well justified in living separately since her mother-in-law had made her life a hell. Such tyranny in the husband's household, although not at the hands of the husband, but at the hands of the mother-in-law obviously comes within the purview of 'cruelty' held in M. Ponnambaiam v. Saraswathy . It may,
however, be stated that the respondent-husband's wild contention regarding his wife's adultery with her brother-in-law Lekhan is thoroughly devoid of any substance and is just an unholy ruse to deprive the wife of her genuine claim.
10. Further, the wife's allegation and averment that she along with her minor children had been turned out by the husband from his house appear to be only normal in view of the fact, that another woman viz. Mst. Bodebai had come to live with him as his mistress or concubine. Therefore, wholly disagreeing with the lower revisional Court and agreeing with the reasonings and findings of the trial Court, I hold in the light of the evidence on record that the respondent husband had neglected to maintain his wife; and that, the wife had sufficient justification in leaving the husband's house and in living separately because of the respondent-husband having taken another woman as his mistress. The wife, accordingly, is entitled to maintenance, and so also the two minor sons who are living with her now, at her parental house.
11. It is, no doubt, true that while filing the petition for maintenance under Section 125 of the Code, the wife had not joined her two minor sons also, as the petitioners and representing herself as their guardian, but this irregularity cannot come in the wife's way for claiming the maintenance of her two minor children who are living with her only. In the petition itself, it has been clearly stated by her that she is claiming maintenance, not only for herself but also for her two minor sons. Another irregularity committed by the wife in her petition and so also by the trial Court is that joint maintenance amount for wife and two children had been claimed and allowed, without separately mentioning the maintenance-amounts for each of them. In this aspect of the matter also, there cannot be too great an insistence on technicality, and practical justice has to be handed down, without being too rigid in the matter of requirement of the provisions. It is well within the purview of this Court in exercise of its revisional jurisdiction to apportion the joint award of the maintenance amount between the wife and the children, even though the same may not have been so claimed by the wife or so allowed by any of the Courts below see Thankappan Asari v. Pankajakshi .
12. Now, admittedly the respondent husband's monthly income by way of salary is Rs. 600/-. The evidence on record on both sides clearly shows that the applicant-wife has no means of earning; and as such she is unable to maintain herself and her two minor children, who at the relevant time of the petition were aged 5 years and 3 years respectively. The respondent-husband obviously possesses sufficient means to maintain them since he has a monthly salary of Rs. 600A from service in M. P. E. B. The trial Court had awarded the total maintenance amount of Rs. 200/-per month, both for the wife and for the two children. The husband can well reasonably spare this total amount for their maintenance. The question is of apportionment.
13. I am of the view that considering the status in life of the parties and equally considering the high cost of living in the present day of soaring prices, Rs. 100/- per month is the barest minimum, for eking put any adult individual's living and existence, and Rs. 50/-per month is, likewise, the barest minimum for rearing up each of the children of such age as these two children are. Therefore, I am of the view that the applicant-wife is entitled to monthly maintenance of Rs. 100/- and each of her two children is equally entitled to monthly maintenance amount of Rs. 50/-, the total maintenance amount being, thus. Rs. 200/- per month for the wife and her two children. The respondent-husband's liability to pay this amount would be from the date of the trial Magistrate's order i.e. from 15-3-82, as the trial Court had already directed.
14. In the result, thus, the wife's revision is allowed. Setting aside the lower revisional Court's order and maintaining that of the trial Court, it is ordered that the respondent, husband shall pay the monthly maintenance amount of Rs. 100/- (Rupees hundred) to the wife for her own maintenance and shall further pay monthly maintenance amount of Rs. 50/-(Rupees fifty) each, for each of the minor children (Total amount Rs. 200/- per month) from the date of the trial Court's order i.e. from 15-3-82.
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