Shiv Kumar Yadav Vs. Santoshii Yadav [ HC. CHHATTISGARH ]

HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.544 of 2003

Shiv Kumar Yadav, S/o Videsi Yadav
Aged about 27 years, Cultivator,
R/o Village Kanhera, Thana Khandsara,
Tehsil Saja, District Durg. ... Petitioners

Versus

Smt. Santoshii Yadav, W/o Shiv Kumar Yadav,
aged about 22 years, R/o village Bhinpuri,
Present Address: Navapara,Tehsil Bemetara, District Durg... Respondents


Shri Sanjay S. Agrawal, counsel for the petitioner.
Shri V.D. Bajpai, counsel for the respondent.

As per L.C. Bhadoo J.

Date: 15/02/2004

:O R D E R

1. The petitioner has preferred this revision under Section 397 read with
Section 401 of the Cr.P.C. 1973, being aggrieved by the order dated 18- 10-2003
passed by the 3rd Additional District and Sessions Judge (F.T.C.), Bemetara
whereby he reversed the order dated 8-1-99 passed by the
Judicial Magistrate, First Class, Bemetara, in Misc. Criminal Case
No.20/1997 whereby the learned Judicial Magistrate rejected the application of
respondent Smt. Santoshi Bai filed under Section 125 of the Cr.P.C. for grant
of maintenance.

2. Brief facts leading to filing of this revision petition are that the marriage
of the petitioner
and respondent (hereinafter Shiv Kumar Yadav- husband will be referred as
petitioner and wife
Santoshi Bail will be referred as respondent) was solemnized one and half year
before the filing of the application under Section 125 of the Cr.P.C. by
respondent on 6-9-1996. After two months of the marriage Gauna ceremony took
place and the petitioner took the respondent to his residence at
village Kanhera. Both the parties lived together for 4 to 5 months and as per
the allegations in the application the petitioner herein started
harassing,ill-treating and subjected to cruelty to
respondent for bringing dowry. Thereafter, on Teja festival the respondent was
taken by her relatives to Bemetara. After celebration of Teja festival the
maternal grandmother of respondent namely, Jhaman Bai and grandfather namely,
Siyaram Yadav along with respondent came to her in-laws house at Kanhera for
leaving the respondent at her in-laws' house. However, the petitioner started
abusing them saying that he would not keep the respondent at his residence, but
her grandmother and grandfather left her at her in-laws' house.

3. As per the allegations of respondent, five months prior to filing of the
application under
Section 125 of the Cr.P.C. the petitioner took the respondent along with him
and left her at the Bus stand of Bemetara and disappeared. After waiting 3 to
4 hours she had left for her maternal
grandmother's house. The parents of respondent are labourers and they are not
able to maintain the respondent and the respondent is unable to maintain
herself, whereas the petitioner's annual income from agricultural sources was
said to be Rs.20,000/- and the applicant is earning round about Rs.900/- per
month by doing the labour job.

4. The reply of the application was filed by the petitioner herein before the
Magistrate in which he denied all the allegations and on the contrary he said
that the respondent herself does not want to live with the petitioner and he
was ready and willing to bring her at his residence and for that purpose he
filed an application before the Sub Divisional Magistrate under Section
98 of the Cr.P.C. in which the learned S.D.M. recorded the statement of the
respondent and before that Court the respondent categorically stated that she
does not want to go to her in-laws house even if her husband gives assurance
that he would not demand dowry and harass her. After recording the evidence of
the parties, the learned Judicial Magistrate Bemetara, dismissed the
application of the respondent under Section 125 of the Cr.P.C. on the ground
that the respondent herself does not want to live with the petitioner without
any sufficient reason. However, on a revision filed by the respondent the
learned 3rd Additional Sessions Judge (F.T.C.),Bemetara reversed the finding of
the Judicial Magistrate holding that the petitioner
does not want to keep the respondent and the respondent was living separately
for sufficient reasons and granted maintenance of Rs.500/- per month in favour
of the respondent.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner while assailing the impugned order passed
by the learned
3rd Additional Sessions Judge, argued only on one ground that the respondent
disentitled herself for the maintenance on the ground that she herself does not
want to go to her in-laws house without sufficient reason. He further
argued that the finding of the learned 3rd Additional Sessions Judge is
perverse,incorrect,illegal and contrary to the evidence on record. Therefore, he
submitted that the order of the learned 3rd Additional Sessions Judge be
set aside and that of Judicial Magistrate First Class, be restored.

7. On the other hand, Mr. V.D. Bajpai,learned Sr. counsel for the respondent
argued that as per the evidence on record the petitioner is responsible for
neglecting the respondent to maintain her. Moreover, petitioner started
harassing,ill-treating and subjected to cruelty to
the respondent for not bringing the dowry i.e., Television, Radio, Cycle,
Almirah and cash and as the petitioner used to ill-treat the respondent and beat
her,therefore,it was not possible for the respondent to reside with the
petitioner.

8. Therefore,in view of the points raised by the learned counsel for the parties
a very limited point remains for consideration of this Court i.e. as to whether
the respondent started residing separately without sufficient reason. In this
connection the provisions of sub-section (4) of

Section 125 of the Cr.P.C.,are relevant which read as under:

"No wife shall be entitled to receive an allowance from her husband under
this Section if she is living in adultery or if, without any sufficient reason,
she refuses to live with her husband, or if they are living separately by mutual
consent".

Therefore, in order to attract the provisions of sub-section (4) of Section 125
of the Cr.P.C., the petitioner was required to prove that the respondent-wife
started living separately with her maternal grand-mother without any
sufficient reason and thereby she disentitled herself for maintenance allowance
and in this connection, the learned counsel for the petitioner placed reliance
on the decision reported in 1978 CRI. L.J. 1645 in the matter of Mammad Kunhi
Vs. Rukhiya, in which Kerala High Court has held that;

"There are three circumstances under which the normal obligation of the
husband to maintain the wife will stand negatived. These are: (a) where the wife
is living in adultery, (b) where the wife and husband are living separately by
mutual consent and (c) where the wife refuses to live with her husband
without sufficient reason. The burden of proving the existing of any of the
threecircumstances,as the case may be, lies on the husband. The wife's refusal
can be proved by the husband indicating that he is willing to allow the wife to
live
with him,that he is ready to take her to his home for residence with him,
but nevertheless she is not willing. But when one i.e., proved it would
be for the wife to show that there are sufficient reasons for her living
apart from the husband. The burden of proof of showing the justifiable
reason must in such circumstances rest not on the husband".

9. Therefore, in the light of the above provision of sub-section (4) of Section
125 of the Cr.P.C., and the above judgment,if we look into the evidence adduced
by the parties in the present matter, we have to examine that whether the
petitioner herein has been able to discharge his
burden as laid down in Kerala High Court judgment and whether the respondent has
been able to rebut the evidence of the husband. If we look into the petition
filed by the respondent in which she has categorically mentioned in para 4 and
5 of the petition that 4 - 5 months after Gauna ceremony, petitioner's husband
started demanding dowry in cash and ill-treating her and subjected to cruelty
and that was seen by one Lobin Yadav at village Kanhera that she continued to
reside with her husband maintaining decorum looking to the back ground of her
family. In para five of the petition, she has further stated that after
celebrating Teeja festival when her maternal grand- mother - Jhaman Bai and
grand-father - Siyaram Yadav went to drop her at her in-laws house, the
non-petitioner, her husband started abusing and said that he would not keep her
at his residence, but her grand-mother and grand-father left her at Kenhara
whereas the evidence in order to prove these allegations against the husband
led by the wife - respondent herein,is totally contrary. In her evidence she
has stated that her husband started demanding Cycle,Almirah, Television and for
that purpose he started subjecting her to cruelty and beating. In the
application under Section 125 of the Cr.P.C., in para 4 of the petition,
Santoshii Bai has simply stated that her husband started demanding rupees. She
had not mentioned about the Cycle,Television and Almirah and in the evidence
she has not stated that her husband demanded cash. Moreover, she has mentioned
in para 4 of the application that this fact was seen by one Lobhin Yadav,but
that Lobhin Yadav has not been produced in evidence in order to support the
allegation made in the application. In her evidence before the Court she has
stated that she had not disclosed this fact to any one. In the cross-examination
she has stated that at village Kanhera her father's sister and her husband are
residing and she used to visit regularly their house, why she had not disclosed
this fact to them, itself shows that she was never subjected to cruelty or
otherwise in the normal circumstances when she was regularly visiting their
house, she ought to have disclosed the fact i.e., harassment, cruelty and
beating. She has not produced any evidence to corroborate her evidence and
stated that Siyaram Yadav,grandfather dropped her at her in-laws house after
Teeja festival,but he has not been examined by her, on the contrary he had been
examined by the applicant as Witness No.4 and Siyaram has specifically stated in
his evidence that Santoshi Bai is his grand-daughter.In para 3 of his evidence,
he has stated that he went to drop her at Kanhera after Teeja Festival and she
remained there for 15 days and when he went to drop her at her in-laws house she
started coming back and then he advised her to remain in her in-laws house
and thereafter with very difficulty she remained in her in-laws house for
15 days and came back to Bemetara. He has further stated that in their
caste the dowry is not given or taken. He is the real grandfather of Santoshii
Bai and he has not stated anywhere that her husband Shiv Kumar was harassing
or subjecting to cruelty to Santoshii Bai for bringing dowry. In para 5 of the
application it has been mentioned by Santoshii Bai that her husband Shiv
Kumar started abusing Jhaman Bai and Siyaram Yadav when they went to leave her
at her in-laws house. This fact has not been corroborated by
Siyaram Yadav. Moreover, Siyaram Yadav in his evidence has stated that he
does not know as to whether when she came from her in- laws house, she
had said about the demand of dowry. He does not know whether Santoshi Bai
had stated that if she will be sent back to her in- laws house, then
there was a danger to her life. It is wrong to say that maternal grandmother
of Santoshi Bai had ever told him that in-laws of Santoshi Bai were
harassing her. In para 10 of his evidence, he stated that when he went to
drop Santoshii Bai at her in-laws house, at that time only mother-in-law and
father-in-law of were at residence and Shiv Kumar was not at the residence.
He was out of the house for the purpose of doing the work. Therefore, this
evidence of the witness is totally contrary to the allegation levelled by
respondent in para no.5 of her petition in which she has mentioned that Shiv
Kumar abused her grand- father - Siyaram Yadav and grand-mother - Jhaman
Bai, therefore, the ground taken by Santoshi Bai for living separately in
para 4 and 5 of the petition has not been proved but a contrary
evidence has been led by her in her statement. Even as mentioned above, her
grandfather Siyaram Yadav and her real uncle have not supported her case. If
she is being harassed by the husband then why she has not disclosed this fact
to her grand-father and grand-mother and why she did not report the matter
to the Police. No reasons have been assigned by Santoshi Bai. More-over
if we look into the conduct of Santoshi Bai, her husband Shiv Kumar
filed the petition under Section 98 of Cr.P.C., before S.D.M. Court in
which her statement was recorded by SDM. She has categorically stated that
now even if her husband undertakes not to beat her and not to demand of dowry,
even then she was not prepared to go her in-laws house. This fact itself
negatived the claim of Santoshi Bai that there is apprehension of her life
that is why she does want to go to her husband's house.

9. On the other hand, Shiv Kumar, husband of Santoshi Bai,has categorically
stated that he had never asked for any dowry and he had never beaten her and
when he went to village Bhinpuri to bring the respondent to his residence, she
was not there and she was residing with her maternal grand-mother - Jhaman Bai.
He further stated that their marriage took place in village Binpuri and the
marriage of Santoshi Bai was arranged by her grand- father Siyaram Yadav.
Therefore, he had gone to Bhinpuri to bring Santoshi Bai as their marriage took
place at Bhinpuri. He filed an application before SDM Court to bring Santoshi
Bai and in that application Santoshi Bai has stated that she does not want to
go her in-laws house. He has further stated that Santoshi Bai asked him that
she would go to Mungeli and instead of going to Mungeli she went to Bemetara
and after leaving him at the bus stand, she went to her grand-mother's house.She
has stated that she is being maintained by her maternal grandmother on her
own will. His mother- in-law and his mother-in-law's sister are also residing
with the grand-mother of Santoshi Bai. As he is handicapped that is why she does
not like him and she says that he is not able to satisfy her.

10. In view of the above evidence on record, the petitioner herein Shiv Kumar
filed the petition under Section 98 of the Cr.P.C., before the S.D.M. Court to
bring Santoshi Bai to his house, but in that petition Santoshi Bai deposed
before the SDM that she does not want to go to her in-laws house even if he
assures that he will not demand of dowry, harass and beat. The charges levelled
by Santoshi Bai have been denied by Shiv Kumar - husband of the respondent and
specific charges levelled by Santoshi Bai for living separately, she has not
been able to prove these charges. More- over she led evidence contrary to the
allegations levelled against him in the petition itself. The petitioner has
been able to discharge his burden as he filed the petition for bringing her
to his house, but she had declined to come to his house. Moreover, he went to
village Bhinpuri to bring his wife, but she was not there and even as per the
evidence of Siyaram Yadav, the grand father of Santoshi Bai, he has stated that
after Teeja festival, when he went to drop her at her in-laws house, she was not
prepared to stay there and she started saying that she would not stay here, then
he advised her to stay there. Thereafter, with great difficulty she stayed at
her in-laws house for 15 days and came to Bemetara and she was residing with
her maternal grandmother, where her mother was also residing.

11. In view of the above, Shiv Kumar,husband of Santoshi Bai has been able to
discharge his primary burden that Santoshi Bai is residing separately without
any sufficient reason and Santoshi Bai has not been able to establish and prove
her case. Therefore, the finding of the learned 3rd Additional Sessions Judge
that there is sufficient reason for Santoshi Bai to live separately is perverse
and contrary to the evidence available on record, which cannot be sustained for
the reasons mentioned hereinbefore this order.

12. In the result, the revision of the petitioner is allowed and the impugned
order of the learned 3rd Additional Sessions Judge (FTC) Bemetara dated
18.10.2003 is set aside and that of the learned Judicial Magistrate First
Class, Bemetara,is restored.

JUDGE
15/02/2004

Raju