Second Marriage by Husband ,wife is entitled to claim maintenance

(2001) 1 J & K Law Reporter 264High Court of Jammu and Kashmir
at Jammu

Surkhi Ram Petitioner
versus
Raj Dulari Respondents

Cr.Ref. 35 / 2000 decided on 16.10.2000.

The Code Criminal Procedure, Svt. 1989 (1933 AD), S. 488 - Maintenance allowance allowed by the Magistrate - Addl. Sessions Judge made reference against order of the Magistrate - For there being no ground for wife to stay apart - 2nd marriage for the husband - Held : Sufficient ground for wife to stay separately - Reference declined - Order of Judicial Magistrate upheld.

Again the mere fact that the wife has not stepped in the witness box is no ground to negative her claim. She has brought four witnesses in the witness box. Most important witness is her mother-in-law . Her statement has necessarily to be believed. When this statement is taken into consideration then this furnishes a ground for the wife to stay part. This also furnishes a ground to grant maintenance to the extent it has been allowed by the trial court. This is because in the statement mad by the mother of the petitioner, who has categorically stated that the income of the petitioner non applicant Surkhi Ram is around Rs.10,000/- Grant of Rs.3,000/ for sustaining four persons is not on the higher side. The reference as such is declined. the order passed by the Judicial Magistrate Ist Class R.S. Pura is up-held.

Cases referred : Chronological 1. Abdulla Khan v. Chandni Bi AIR 1956 Bhopal
2. Biro v. Behari Lal AIR 1958 J & K 47
3. Syed Ahmad v. N.P. Taj Begum Bhopal AIR 1958 Mysore 128
4. Hem Chand v. Mst. Prabhati Bhai AIR 1962 12 Rajasthan Law Weekly 686
5. Kandasami v. Nachammal AIR 1963 Madras 263
6. Mohd. Haneefa v. Marlam Bi AIR 1969 Madras 414
7. Smt. Bhanwari Bai v. Bheroon Lal AIR 1973 CR.L.J 804
8. Aziz Mohd. v. Mst. Sayda Begum AIR 1981 CRI L.J. 267

JUDGMENT AND ORDER

"The aged parents, a virtuous wife and infant child must be maintained even by doing a hundred mis-deeds."

(Manu cited in Mita Kshara)

This is a reference made by the learned Addl Sessions Judge, jammu holding that the order passed by the Judicial Magistrate 1st class, R.S.Pura whereby he had allowed monthly maintenance allowance of Rs.3000/- in favour of respondent Raj Dulari and her minor children is not in accordance with law what prevailed with the learned Addl Sessions Judge to make a reference is that none of the respondents appeared in the court to substantiate their claim. It has been observed that in these circumstances the trial court mis-directed itself in fixing the maintenance amount of Rs.3000/ PM.

The respondent Raj Dulari and her three minor children had preferred a petition under section 488 Cr.P.C.It was pleaded that marriage between her and Surkhi Ram was solemnized about 19 years ago in accordance with Hindu rites. Out of this wed-lock four children were born daughter is with father. Three sons are with mother. They are school going. In para 4 of the petition it was submitted that the husband had kicked them out from the matrimonial house. In para 6 of the petition it was submitted that they have no other means of livelihood. So far as the income is concerned it was pleaded that the respondent is holding two acres of agricultural land and also run a big Dairy Farm and erans about Rs. 30,000/- per month. It was in these circumstances prayed that the respondent be directed to pay the maintenance allowance in terms of section 488 Cr.P.C.

The present petition Surkhi Ram, who figured as non-applicant in the petition under section 488 Cr.P.C. filed his objections. He admitted that Raj Dulari is his weded wife. Regarding sunil Sharma, it is stated that he is 18 years of age and is therefore, not entitled to any maintenance. With regard to the statement of fact that is contained in paragraph 3, that these children are school going, there was a simle denial. In para 4 of the objections it was stated that one of the petitioner is living in the house of maternal grand-father and none of the children is a burdern on the respondent No.1 Raj Dulari. It was further pleaded that he had not deserted his wife. It may however be seen that in the objections preferred by the respondents he has not said a single word that he is ready and willing to bring back his wife or the children or to maintain them or that he has made any attempt to confer fatherly affection on the children.

PW Badri Nath appeared in the witness box. He stated that the applicants are residing in a rented house. He stated that the applicants has one female child and three male issues. This witness did not elaborate the reason as to why the wife alongwith her children is staying away from her husband.

Another witness is Amar Nath. He stated that applicant No.1 Raj Dulari is residing separately because the non-applicant/petitioner has contracted second marriage and that the applicant Raj Dulari has been ousted from the house. He further stated that out of the wed-lock three sons are residing with the applicant, whereas the daughter is residing with the husband. It was specifically stated that the applicants have no source of income. This witness was cross-examined. In cross examination he stated that Sunil Sharma who is the elder son is between 16 to 17 years of age. Arun Sharma is said to be 14 to 15 years of age. It was sought to be pointed out that on account of some personal vengeance this witness has come in the witness box to depose against the petitioner/non-applicant.

PW Chaman Lal is another witness, who was again non-committal but stated that the wife and her three children are residing separately.

The material witness is PW Shakuntala Devi. She is the mother-in-law of applicant Raj Dulari. She has supported the daughter-in-law fully. She stated that the petitioner/non-applicant has not kept the respondents applicants with him for the last three to, four years. The wife alongwith her children is staying separately. She stated that no maintenance was ever paid to her daughter-in-law. She also stated that her son is a contractor by profession and erans between Rs.10,000/- to Rs.15,000/- every month. She also stated that the wife and the children require at least Rs.2,500/- PM. This witness was again categoric and stated that Raj Dulari into second matrimonial alliance. The mother of the husband was cross-examined. In cross-examination she stated that she had made every effort to bring about reproachment but it is her son who has adopted a hard attitude.

The petitioner/non-applicant led evidence. This is with regard to his income and also with regard to the fact that there was no quarrel between the parties.

DW Raj Kumar appeared in the witness box. He stated that the wife and three children are staying separately. This witness stated that non-applicant/petitioner do not possess any vehicle.

The trial court on the basis of statement given by Smt. Shakuntala Devi i.e. the monther of the non-applicant came to conclusion that the wife and three children are entitled to maintenance because he had entered into a second marriage, and has forced them to leave the matrimonial house. It was this statement of Shakuntala Devi which prevailed with the trial court in coming to the conclusion that the wife and her three monor children were entitled to maintenance and the maintenance amount was accordingly fixed.

In this regard it would be apt to mention that not only Shakuntala devi, but another witness pw Amar Nath has stated that Surkhi Ram petitioner has entered into a second marriage alliance. With regard to the income it has come on the record that he earns about Rs.10,000/- to Rs.15,000/- per month.

The Addl sessions Judge has made a reference on the plea that there was no justification for the wife to stay apart and that she was not entitled to receive maintenance when she has refused without sufficient cause to live with her husband. It has been observed that simply because a wife is living separately from her husband does not furnish a ground to claim maintenance.

I am of the opinion that the view expressed by the learned Addl. Sessions Judge, Jammu cannot be sustained.

It has come on the record the statements of two witness i.e. PW Amar Nath and pw Shakuntala Devi, the mother of the present petitioner. The mother of the petitioner is categoric. This is to the effect that the husband has entered into a second matrimonial alliance. So far as this aspect of the matter is concerned there was no cross-examination. The statement made by shakuntala Devi has been read over with the assistance of the court reader. Perusal of the same makes it apparent that the present petitioner has kept another lady in his house. If this be the situation then this single factor would be good enough for the wife to stay apart from her husband. In this regard it may be apt to refer that claim under the Hindu Marriage Act either party to a marriage is entitled to judicial separation on any of the grounds specified in section 13 of the Act and one of the factors which is avaliable in this regard is that where any party to the marriage voluntarily had sexual intercourse with any person other than his or her spouse. This factor goes in favour of the wife. If the statement of mother of the petitioner is taken note of then it becomes apparent that the petitioner is living with his second wife and this would furnish a ground for the respondents/applicants to stay apart.

The principles governing grant of amintenance under section 488 of the Code of Criminal procedure are well settled some of these are :

(i) Desertion means intentional, permanent for saking and abandonment without reasonable cause by the spouse without consent of other. Desertion is not withdrawal from a place but from a state of thing.

(ii) In determining what is just and sufficient ground for the wife’s refusal the circumstances in which a wife is entitled to live separately without forfeiting her claim to maintenance under the personal law by which she is governed has certainly to be taken into account.

(iii) Refusal to live with the husband must be based on reasonable cause and must have relation to health and safety of wife. Reasons such as inconvenience, hardship or such reasons purely based on economic grounds are not contemplated to be sufficient reasons.

(iv) If the wife is living separate from her husband on account of his second marriage or keeping a mistress in the house and if the husband does not maintain her then that would amount to neglect or refusal to maintain entitling the wife to an order for maintenance from the court. Some judicial prouncments to niticed.

A full Bench of this Court in case reported as Aziz Mohd v Mst Sayda Begum 1981 Cri. L.J. 267, has observed that re-marriage of husband ip so facto constitutes a sufficient cause for wife’s refusal to live with him entitling her to claim maintenance from him. It was observed that in such a situation it is not necessary for the wife to further establish ‘neglect or refusal’ on the part of the husband to maintain her. After coming to this conclusion, the earlier view of the court in the case reported as Biro v/s Behari Lal AIR 1958 J&K 47 was approved.

A wife is relieved for her obligation to render to her husband his congugal rights on account of his having contracted another marriage. The husband cannot insist on her residing with him as a condition for maintaining her and she is entitled to claim maintenance even if she is not willing to reside with him. Such a view has been expressed in number of decisions. One such decision of the Rajasthan High Court is reported as Smt. Bhanwari Bai v Bheroon Lal 1973 CRI L.J. 804, where reference is made to, an earlier decision of that court reported as Hem Chand v Mst Prabhati Bhai (1962) 12 rajasthan Law Weekly 686.

The Madras High Court in a decision reported as Mohamed Haneefa v Marlam Bi AIR 1969 Madras 414 has expressed similar view. The learned Judge placed reliance on an earlier decision of that High Court reported as Kandasami v Nachammal AIR 1963 Madras 263 and also referred to a decision of the Mysore High Court Syed Ahmed v N.P.Taj Begum AIR 958 Mys. 128 and that of the Bhopal High Court Abdulla Khan v Chandni Bi AIR1956 Bhopal .

In view of the above, this single ground is good enough for grant of maintenance in favour of the petitioner.

Again the mere fact that the wife has not stepped in the witness box is no ground to negative her claim. She has brought four witness in the witness box. Most important witness is her mother-in-law. Her statement has necessarily to be believed. When this statement is taken into consideration then this furnishes a ground for the wife to stay part. This also furnishes a ground to grant maintenance to the extent it has been allowed by the trial court. This is because in the statement made by the mother of the petitioner, who has categorically stated that the income of the petitioner/non-applicant Surkhi Ram is around Rs.10,000. Grant of Rs.3,000/- for sustaining four persons is not on the higher side. The reference as such is declined. The order passed by the Judicial Magistrate 1st class R.S.Pura is up-held.

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