Sunday, 18 October 2015

How to appreciate evidence of married aunt of wife in proceeding for grant of maintenance?

But let us not forget the background in which the evidence has to be appraised. The spouses are from the rural areas and possibly a drought striken portion of Ahmednagar District. For three long years the wife stayed with the husband and on the husband's own showing he then had nothing to complain about. It is difficult to believe that one visit by the wife's aunt made her so unreasonable as to become defiant and adverse to household work. The aunt of the wife has been examined as a witness and she denied that she had instigated the petitioner to leave her husband or act in an unreasonable manner. The aunt A.W. 3 Samindrabai is a married woman with responsibilities of her own and it is not probable that she would unnecessarily instigate her married niece to take a defiant attitude for no rhyme or reason
Bombay High Court

Gumphabai (Sou.) vs Laxman Vithal Makle And Anr. on 6 July, 1988
Equivalent citations: 1988 (4) BomCR 113

Bench: S Daud



1. This is the wife's petition taking exception to the dismissal of an application moved by her for maintenance under section 125 of Code of Criminal Procedure, 1973.
2. The petition gives rise to questions which have to be considered in the following backdrop:
''Petitioner was married to respondent 1 in the year 1979. In about the year 1982 there took place certain events and from that time onwards the petitioner is not regularly residing at the marital home. According to the petitioner, in the year 1982 respondent 1 started saying that he did not like her and that he wanted to get rid of her. Several efforts by her and her relations to make respondent 1 mend his ways were of no avail. Eventually she was driven away from the marital home and thrown out when she tried to effect a re entry. Respondent 1 had not cared to provide her for maintenance and having regard to his means, she was entitled to an order directing him to pay her Rs. 400/- per month. The 1st respondent disputed the stand taken by the petitioner. His case was that in about 1982, the petitioner at the instigation of her aunt started defying him and his mother. All efforts to persuade her to be reasonable were of no avail. Eventually she left his house and refused to return. It was not correct to say that he had ill-treated or driven her away. He was ready and willing to maintain the petitioner if she came to live with him. In support of their versions the spouses examined themselves and the petitioner examined two others. The Magistrate held that the wife had failed to prove ill treatment at the hands of the husband and his refusal to maintain her. According to him, it was the wife who was to blame for having deserted her husband. This apart the Magistrate was of the view that the wife had grossly ex-aggerated the means of the husband and that having regard to the true position if at all he would not be liable to pay more than Rs. 75/- per month. This verdict of the Magistrate was confirmed in revision by an Additional Sessions Judge".
3. Mr. Joshi who appears for the petitioner submits that the Court below have taken an unusually harsh view of the evidence adduced by his client. She had examined herself, her aunt and a nephew of that aunt. There was no reasons to believe that these were interested persons. In any case, in cases of this nature, the witnesses expected to be in the know of affairs had to be those related to or interested in the spouses. For near about 3 years, the petitioner had attended to respondent 1 and it was highly improbable that without there being just cause, she would move out of her husband's house and live on the charity of her parental relations. Mr. Kothari's reply to this submission is that the Court below have appraised the evidence and found the petitioner's version wanting incredibility. Their verdict is a well considered one and should not be disturbed on mere theoretical considerations. There is substance in the what both the Counsel have to say. But let us not forget the background in which the evidence has to be appraised. The spouses are from the rural areas and possibly a drought striken portion of Ahmednagar District. For three long years the wife stayed with the husband and on the husband's own showing he then had nothing to complain about. It is difficult to believe that one visit by the wife's aunt made her so unreasonable as to become defiant and adverse to household work. The aunt of the wife has been examined as a witness and she denied that she had instigated the petitioner to leave her husband or act in an unreasonable manner. The aunt A.W. 3 Samindrabai is a married woman with responsibilities of her own and it is not probable that she would unnecessarily instigate her married niece to take a defiant attitude for no rhyme or reason. The criticism levelled by the Court below against Samindrabai and her nephew Bhausaheb is misplaced. After all they would be natural witnesses to advocate a reconciliation between the spouses or to persuade the husband to take a more reasonable attitude. All that what has been suggested to the petitioner is that she has filed a false application at the instigation of her aunt. As said earlier, it does not appear that the aunt would have any purpose in inciting discord between her married niece and that niece's husband. It is true that the notice given by the wife was replied to by the husband. But the significance in the exchange of notices is that it was the wife who first gave notice. Even though the wife had left his home it was not the husband who first addressed her any written communication. Insofar as the ill-treatment is concerned there is the version of the wife supported by her witnesses. The charge that these witnesses are interested carries no conviction. After all it is an unusual thing to except covillager of the husband coming forth to testify against one of their own kind and that too in a matrimonial dispute between that person and his wife. Mr. Kothari says that the husbands offer to take back the wife has not been challenged. The sincerity behind the offer is not evident, seeing that it was not put to the wife when she was in the witness box. Regard being had to the probabilities. I think the petitioner's version is acceptable and that the testimony of her two witnesses is substantially true. Now, I know that this is a writ petition and that normally a writ Court is not entitled to substitute its own finding for those reached by the statutory Courts. But if the statutory Courts have taken an unusual view of the evidence regardless of the social realities, the writ Court must interfere. I hold that the petitioner was ill treated and was driven away from Respondent No. 1 husband's home thus entitling her to an award of money for separate maintenance.
4. In regard to the quantum the petitioner describes Respondent No. 1 as rolling in wealth. This is an exaggeration. Respondent No. 1 speaks of petitioners being in a position to and in fact earning a living by manual labour. This again is an exaggeration, for employment in the rural areas is highly irregular and ill-paid. Respondent No. 1 on his own showing has six acres of land. He claims that the same is dry and that besides him there are other sharers in the said land. His interest in suppressing the truth is always there. Therefore, it is best to go by the requirement of the petitioners. She was 22 years old when examined before the Magistrate in 1984. At this date her age must be about 26 years. For an able bodied person like her a sum of Rs. 75/- per month would not be excessive. There is no reason why the petitioner should be deprived of the benefit of receiving this amount from the date of the application moved by her. In regard to the costs, I think it will be appropriate to leave the parties to bear their own costs throughout. Hence the order.
Respondent No. 1 do pay maintenance to the petitioner at the rate of Rs. 75/- per month as from the date on which the latter partitioned the J.M.F.C. Costs through out as incurred. Rule in the above terms made absolute.

Print Page

No comments:

Post a Comment