IMPORTANT POINT
Leaving matrimonial house for 4-5 years does not entitle a husband to marry again.
Erroneous to disentitle a woman to maintenance, even if the husband contracts second marriage, merely because she had left matrimonial house earlier.

JUDGMENT

V.S. Sirpurkar, J. —

1. Leave granted.

2. The appellant Saygo Bai, wife of Chueeru Bajrangi along with her two minor children Jivti (daughter) and Basant (son) filed an application under Section 125 Cr.P.C. against her husband Chueeru Bajrangi. She pointed out therein that her husband had taken a second wife, namely, one Smt. Gulab Bai and that he was a salaried employee in a Government department. However, he was neglecting to maintain Saygo Bai and her two children. She also pleaded that she had cordial relationship with her husband upto year 1989. However, the respondent-husband started avoiding the family. During the year 1990, he took Gulab Bai as his second wife. As a result, the appellant and her children were thrown out. She claimed the maintenance of Rs.3,000/- per person per head. The respondent-husband resisted this application claiming that he always maintained good relations with Saygo Bai and used to visit his village Chalani, where his wife and children resided with his parents, off and on. He claimed that when Basant, the younger child was only six months old, Saygo Bai left her matrimonial house without any rhyme or reason and went to her father’s place at village Banda. He further pleaded that he tried to bring back the appellant and had gone to that village along with one Shobha and Haria of his village but she refused to come back. All this, according to him, happened five years prior to the second marriage which he had performed for taking care of his two children. In short, he claimed that two children were always with husband and, therefore, there was no question of abandoning them. The claim of the respondent-husband was that the wife left his company without any rhyme or reason. He then pointed out that it was only after five years of abandonment of matrimonial house that his wife Saygo Bai had filed the application for maintenance under Section 125 Cr.P.C. thereby he further pointed out that she was not entitled to any maintenance as she had left his company without any justification.

3. Saygo Bai examined herself in support of her claim and pointed out that till 1989 she used to live along with her two children and the respondent-husband used to visit off and on. However, after he took his second wife, he stopped coming altogether to the village. She also examined one other witness PW-2, Naua. She also spoke about the second marriage of the non-applicant. The third witness Kahru Ram (PW-3) was also examined who was her near relation. She also asserted that the husband Chueeru Bajrangi had contracted the second marriage while the appellant Saygo Bai was living with him. She admitted that the second wife used to take care of the father of the respondent-husband. Kahru Ram was also examined to support the story of the appellant being thrown out of the matrimonial house.

4. On behalf of the respondent-husband, he examined himself and claimed that when he had came to his village from Balangi, where he was posted, his both children were lying unattended in the house and old parents were also not being taken care of and, therefore, he along with one Sona Ram (DW-2) and Jharia Ram (DW-3) went to bring her back and asked her to come back and take care of children and parents but she refused to come back. He, therefore, left the children to the care of his parents and thereafter the appellant waited for 4-5 years and approached the Court only after he got married with Gulab Bai. The two other witnesses supported the evidence of the respondent-husband.

5. The Trial Court has returned a finding that Saygo Bai (appellant herein) had not come to the Court with clean hands. A strange observation has been made that the appellant used to visit her matrimonial house and also used to meet Gulab Bai but she never made any complaint in the village regarding her being driven out of the matrimonial house. Again, the Trial Court, very strangely, gave a finding that the wife-Saygo Bai never tried to hold Panchayat