Back
1994 Supreme(Pat) 308
PATNA HIGH COURT
Amir Das, J.
Chandrakanta Sinha
Versus
Arun Kumar Sinha
Criminal Revision No. 142 of 1992 ;
Decided On : SEPTEMBER 14, 1994
A wife is entitled to maintenance from her husband even if she is employed, if the amount she earns is not sufficient for her maintenance or that of her children.
Headnote:
MAINTENANCE - HINDU MARRIAGE ACT, 1955 - SECTION 18 - MAINTENANCE ALLOWANCE - WIFE ENTITLED TO MAINTENANCE DESPITE BEING EMPLOYED AS LECTURER ON TEMPORARY BASIS AND RECEIVING ONLY CONVEYANCE ALLOWANCE - HUSBAND'S REMARRIAGE AND SECOND WIFE LIVING WITH HIM MAKES IT RISKY FOR WIFE AND CHILDREN TO LIVE WITH FAMILY - HUSBAND CAPABLE OF MAINTAINING WIFE AND CHILDREN - MAINTENANCE AWARDED AT THE RATE OF RS. 1,500/- PER MONTH.
Fact of the Case:
Petitioner-wife filed an application for maintenance against her husband-Opposite Party claiming herself to be his legally married wife and on amongst other grounds. She asserted that she was married with Opposite party according to Hindu rites and customs on 4.7.1979 and thereafter, she was living with her husband. She gave birth to two sons-one on 5.12.1980 and another 5.3.1982. These two sons are also petitioners and they are living with their mother. Sometimes, thereafter the opposite party started torchring, and ill-treating her resultant she left her husbands house under compulsion. Neither the petitioner nor her children were maintained by the opposite party rather they were neglected to be maintained. Consequently, she made an application of grant of maintenance on 26.9.1983. She has also claimed that her husband-Opposite party is a Junior Engineer drawing a handsome salary and the petitioner has no source of her livelihood and as such she is not able to maintain herself and her children.
Finding of the Court:
The court found that the petitioner-wife was legally married to the opposite party-husband and that the two sons were their legitimate sons. The court also found that the opposite party-husband had remarried and that the second wife was living with him. The court further found that the petitioner-wife was employed as a lecturer on a temporary basis and was only receiving conveyance allowance, which was not sufficient for her maintenance or that of her children.
Issues: 1. Whether the petitioner-wife is entitled to maintenance despite being employed as a lecturer on a temporary basis and receiving only conveyance allowance? 2. Whether the husband's remarriage and the second wife living with him makes it risky for the wife and children to live with the family? 3. Whether the husband is capable of maintaining the wife and children?
Ratio Decidendi: 1. The court held that the petitioner-wife was entitled to maintenance despite being employed as a lecturer on a temporary basis and receiving only conveyance allowance, as the amount was not sufficient for her maintenance or that of her children. 2. The court also held that the husband's remarriage and the second wife living with him made it risky for the wife and children to live with the family. 3. The court further held that the husband was capable of maintaining the wife and children, as he was a Junior Engineer drawing a handsome salary.
Final Decision: The court allowed the revision application and set aside the order passed by the learned Magistrate. The court awarded maintenance to the petitioner-wife and her two sons at the rate of Rs. 1,500/- per month from the date of filing the application, i.e. 26.9.1983.
Amir Das, J.
1. This revision-application under Secs. 397 and 401 of the Code of Criminal Procedure is directed against the order dated 23,4.1992 passed by Sri Ramanuj Sinha, Judicial Magistrate, 1st Class, Patna in Case No. 558 (M)/1983 whereby the prayer for grant of maintenance has been refused.
2. The petitioner-wife made an application for grant of maintenance against her husband-Opposite Party claiming herself to be his legally married wife and on amongst other grounds. She has asserted that she was married with Opposite party according to Hindu rites and customs on 4.7.1979 and thereafter, she was living with her husband. She gave birth to two sons-one on 5.12.1980 and another 5.3.1982. These two sons are also petitioners and they are living with their mother. Sometimes, thereafter the opposite party started torchring, and ill-treating her resultant she left her husbands house under compulsion. Neither the petitioner nor her children were maintained by the opposite party rather they were neglected to be maintained. Consequently, she made an application of grant of maintenance on 26.9.1983. She has also claimed that her husband-Opposite party is a Junior Engineer drawing a handsome salary and the petitioner has no source of her livelihood and as such she is not able to maintain herself and her children. The proceeding was contested by the opposite party-husband on two grounds, firstly that the petitioner-wife is a Lecturer and getting a salary sufficient for her maintenance and her children maintenance and secondly that she is living in adultery.
3. However, Opposite party-husband admitted the fact that the petitioner-wife is his legally married wife and two sons are his legitimate sons. Both the sides adduced evidence in support of their respective claims. After taking into consideration the evident on the record. Judicial Magistrate recorded the finding that though the petitioner is legally married wife but she being employed as Lecturer and getting salary according to the statute of Magadh University she is not entitled for maintenance allowance. In second place he has also recorded the finding that second marriage of the opposite party-husband has not been satisfactorily proved. On the aforesaid finding the learned Magistrate refused the prayer of the petitioner-wife and dismissed the application.
4. The learned counsel appearing on behalf of the petitioner has challenged the correctness and legality of the finding recorded by learned Magistrate on the ground that learned Magistrate failed to give correct approach to the documents filed by the petitioner resultant there is miscourage of justice. He has referred all those document which were relied upon by the petitioner as well as discussed by the learned Magistrate.
5. Since the petitioner has been accepted as legally married wife and sons have been accepted as legitimate sons, I do not find to deal this aspect of the matter any further. Firstly I will take up the allegation of re-marriage of the Opposite party.
6. In this context besides oral evidence, there are some documents which are relevant to this case Annexure 4 corresponding to Ext. 6 is marriage certificate granted by Mahanth of Sri Bari Patan Devi Mandir. In this annexure it has categorically been mentioned that one Renu Kumari, daughter of Kamla Prasad of Kurkuri, P.S. Phulwari Sharif, District Patna was married to Arun Kumar Sinha alias Munna, son of late Jogeshwar Prasad alias Bhuneshwar Prasad, Junior Engineer, Kankarbagh Block CC 63. It further stands mentioned that the marriage was performed in a temple on 15.1.1988. This document was discussed by the learned Magistrate but he appears to have failed to apply his mind into details of the fact incorporated therein. Munna Prasad is the alias name of Opposite party Arun Kumar Sinha. His parentage and address are also there. Therefore, there is no difficulty in identifying that fellow. The learned Magistrate how misunderstood this aspect of the m
