When the statements of both the parties are to be considered without any documents etc. then circumstances are to be considered to assure that whose statement on oath appears to be
correct. The respondent no.1, who had five children alive could not leave her husband without any reasonable cause and therefore, if no other evidence is produced to show that applicant was living with some other woman then still the testimony of the respondent no.1 should be believed. No woman will leave the house of her husband without any reasonable cause. Under such circumstances, where the applicant is appending that respondent no.1 is a bad character woman without any basis, it appears that he was continuing with the cruelty done with the respondent no.1. She lived with her husband for so many years and she got six children, then her allegations that the applicant was in habit to assault her on and often, may be accepted to be true.
Madhya Pradesh High Court
Suresh Prasad vs Urmila Devi on 14 February, 2012
The applicant has preferred an application under Section 482 of Cr.P.C challenging the order dated 1.12.2010 passed by learned Vth Additional Sessions Judge, Rewa in Criminal Revision No.296/2009 by which the order dated 14.7.2009 passed by JMFC Rewa (Shri G. C. Mishra) in MJC No.189/2006 was confirmed. Applicant has also challenged the order dated 14.7.2009 passed by JMFC Rewa.
2. Facts of the case are that the respondent no.1 has filed an application under Section 125 of Cr.P.C that she was the wedded wife of the applicant. In 1986, after 8 years of her marriage Gauna took place and thereafter, she was residing with the applicant. She got six children from the applicant, out of them one had already expired. Applicant was in habit to assault the respondent no.1 and ultimately, she was thrown out from the house because the applicant kept one Geeta, daughter of Kolai @ Jamuna Saket in his house. Respondent no.1 and her children did not have any means for their maintenance and therefore, application under Section 125 of Cr.P.C was filed before the competent Magistrate.
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3. In the reply filed by the applicant, he denied the entire allegations made in the application. On the contrary it is alleged that respondent no.1 had illicit relation with someone at Allahabad. She was in habit of running away from her husband's house frequently. In the year 2002 she left house of her husband without any intimation and started living with another man. Under such circumstances, she has no ground to get maintenance by living separately. It is also alleged that respondent no.6, Shivam was not the son of the applicant.
4. After considering the evidence adduced by both the parties, learned JMFC, Rewa granted maintenance to the respondents in tune of Rs.500/- to the wife and Rs.200/- to each of the children per month. Revision filed by the respondents was dismissed vide order dated 1.12.2010 by Vth Additional Sessions Judge, Rewa.
5. Learned counsel for the applicant has submitted that respondent no.6 is not the child of the applicant and therefore, applicant was not liable to pay any maintenance to that child. It is also submitted that respondent no.1 could not prove the circumstances by which she could live separately. Without any sufficient reason to live separate, she could not get any maintenance. It was for the respondent no.1 to prove the reason. Learned counsel for the applicant placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of "Chaturbhuj Vs. Sita Bai" ((2008) 2 SCC 316).
6. Learned counsel for the respondents has submitted that respondent no.1 had resided with the applicant for so many years and she got six children from the applicant. Applicant was in habit to assault the respondent no.1 often and ultimately, he kept a woman Geeta with him and therefore, no option was left with the respondent no.1 but, to live with her parents. During the marriage, respondent no.6 was born and respondent no.1 was pregnant when she was thrown out of the house and therefore, 3
presumption is in favour of the respondent no.1 that respondent no.6 was born to her by the applicant. Applicant could not rebut the presumption and therefore, respondent no.6 is entitled to get the maintenance.
7. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the parties, it is apparent from the suggestions given to various witnesses of the applicant viz. Urmila Devi (P.W.1), Munnilal (P.W.2) that upto three years prior to their statement, the respondent no.1 was kept with comfort by the applicant. Statements of these witnesses were taken in the month of April and October 2007 and therefore, by such suggestions it is apparent that applicant was of the opinion that the respondent no.1 was residing with him up to the year 2004. Proceeding under Section 125 of the Cr.P.C was initiated in February 2005 in which applicant no.6 was shown to be two years old and therefore, the statement of the respondent no.1, Urmila Devi seems to be acceptable that when she was thrown from the house, she was pregnant. Applicant Suresh Prasad Saket (D.W.1) has admitted in para 5 that the respondent no.1 left her house just after the marriage of his cousin Guddu. It was easy for the applicant to prove the date of marriage of cousin Guddu but, no specific date was given by the applicant. Under such circumstances, applicant could not rebut the presumption. Applicant has submitted a certificate Ex.D/3 which was prepared by some Gram Panchayat to show that respondent no.1 was living separately since 8-10 years. If that certificate is accepted then it would be clear that not only the respondent no.6 but, respondent no.5 will also be an illicit child. Certificate issued by the Panchayat appears to be contrary to the facts and therefore, it has no evidentiary value. Under such circumstances, applicant could not rebut the fact that when the respondent no.1 left her house she was pregnant and therefore, it cannot be said that respondent no.6 was not the son of the applicant. Learned Judicial Magistrate has rightly granted maintenance to that boy. 4
8. It is apparent from the evidence that applicant could not prove that the respondent no.1 was living with any other person. Some photographs were filed before the trial Court but, such photographs are not proved according to law. No negative of the photograph is submitted. It is no where proved that who took the photographs and which was the place shown in the photograph. By such photographs, it cannot be said that respondent no.1 was residing with that person, who is visible in that photograph. Identity of that person was not disclosed. Under such circumstances, allegations appended by the applicant were not correct then it is to be assessed that what was the reason as to why the respondent no.1 was not residing with him. A wife, who was residing with her husband for as long as 15-20 years, who got six children from her husband, then it cannot be said that she was intended to leave the place of her husband without any sufficient cause and therefore, if she says that the applicant kept one Geeta in his house, then her testimony should be believed. Otherwise, no any other ground is visible by which respondent no.1 could leave the house of her husband with 4-5 children of minor age.
9. Applicant has stated in the trial Court in para 7 that he had moved an application for restitution of conjugal rights but, when he was suggested that his application was dismissed because he kept a woman Geeta then he simply denied but, it is not his version that application for restitution of conjugal rights is pending. On the contrary, he says that he does not know about the fate of that application. Under such circumstances, an adverse inference is to be drawn against the applicant that he lost that application, filed by him for restitution of conjugal rights and therefore, copy of the judgment of that application was not filed in support of the evidence made by the applicant.
10. When the statements of both the parties are to be considered without any documents etc. then circumstances are to be considered to assure that whose statement on oath appears to be 5
correct. The respondent no.1, who had five children alive could not leave her husband without any reasonable cause and therefore, if no other evidence is produced to show that applicant was living with some other woman then still the testimony of the respondent no.1 should be believed. No woman will leave the house of her husband without any reasonable cause. Under such circumstances, where the applicant is appending that respondent no.1 is a bad character woman without any basis, it appears that he was continuing with the cruelty done with the respondent no.1. She lived with her husband for so many years and she got six children, then her allegations that the applicant was in habit to assault her on and often, may be accepted to be true. Evidence led by the applicant is not a trust worthy statement and a fake certificate is obtained from the Panchayat whereas Panchayat has no concern in issuance of such a certificate. Suggestions were given to the respondent no.1 that she was residing peacefully with the applicant three years prior to her statement and on other hand applicant denies that he is not father of child Shivam. Under such circumstances, evidence led by the applicant appears to be concocted and not believable.
11. Under such circumstances, learned Magistrate as well as Additional Sessions Judge had rightly held that Shivam was the child of the applicant and respondent no.1 was entitled to get maintenance without living with the applicant. The law laid by Hon'ble the Apex Court in the case of Chaturbhuj (supra) is not applicable in the present case because of the different factual position. In the present case, the respondent no.1 has proved that after living for very long time with the applicant, she left him with five minor children and therefore, it was found that her testimony is believable. Under such circumstances, the respondent no.1 has proved that she has a strong reason to get maintenance without residing with the applicant.
12. On the basis of the aforesaid discussion, present application 6
under Section 482 of Cr.P.C filed by the applicant is not acceptable. No inherent jurisdiction can be invoked under Section 482 of Cr.P.C in favour of the applicant.
13. Consequently, application under Section 482 of Cr.P.C is hereby dismissed. Applicant is directed to pay the cost of the present proceedings Rs.5000/- to the respondent no.1 including Advocate's fees. Cost of this case can be recovered by the respondent no.1 from the applicant in her execution application for the maintenance amount.
(N.K.GUPTA)
JUDGE
14.2.2012
bina
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