1984 Supreme(MP) 358

S. K. Seth, J.
Shantabai v. Bhelubhai
Cr. R. No. 513 of 1982 (J); Decided on 18-7-1984.

Headnote:(1) Criminal P.C., 1973-S. 125-scope of-proceedings are not of nature contemplated in Hindu Marriage Act-desertion or --cruelty -not to be proved by elaborate evidence.

       (2) Criminal P. C., 1973-S. 125-husband not bringing wife and newly born child for two years-delayed offer to maintain-not bona fide.

       (3) Criminal P.C., 1973-S. 397d`revisiona/ powers underd`reappreciation of evidence- not called for.

       The Judicial Magistrate, First Class, Chhindwara vide his order dated 10-7-1981 passed in Misc. Criminal Case No. 93 of 1979 allowed application dated 11 -4-1977 made by applicant Smt. Shantabai under Sec. 125, Cr. P.C. on behalf of herself and her minor child Vinod and directed applicants husband non-applicant Bhelubhai to pay a toal monthly allowance of Rs.350/- (Rs.250.00 plus Rs.100.00) to the applicant for her maintenance and that of the minor child with effect from the date of the order.

       Being aggrieved by the above order, non-applicant Bhelubhai preferred a revision to the Court of Session. The First Additional Judge to the Court of Sessions Judge, Chhindwara vide his order dated 9-4-1982 passed in Criminal Revision No. 70 of 1981 allowed the revision partly by setting aside the order passed by the Judicial Magistrate with regard to payment of monthly allowance of Rs.250/- to applicant Smt. Shantabai but maintaining the said order with regard to payment of monthly allowance of Rs.100/- to minor Vinod.

       Held: The case of applicant Smt. Shantabai was that the non-applicant and his mother had been torturing her in different ways since her marriage with the non-applicant in the year 1974. On the particular occasion they went to the length of accusing her of having committed· a theft of Rs.200/-, gave her a beating and did not give anything to her to eat. In fact, there had been no theft of the said amount and a little afterwards the money was found in the house itself. Even after the discovery of the money, the non-applicant and his mother continued mistreating the applicant, gave her threats that in case she continued to Li"Ve in the house she would be killed, and turned her out of the house

       It is apparent from a perusal of the order of the Court of Session that the scope of Sec. 125, Cr. P. C. was misunderstood by it. It is perhaps for the said reason that it proceeded to re-appreciate the evidence produced in the case as if it was trying a petition by a wife for judicial separation or divorce under the Hindu Marriage Act. It failed to bear in mind that the object of Sec. 125, Cr. P. C. was to avoid vagramey and the proceedings under the said section were summary proceedings. It was not necessary for the wife to prove desertion or cruelty by adducing any elaborate evidence on the point. It was sufficient for her to establish the circumstances from which a prima facie case of her husband having neglected or refused to maintain her could be spelt out.

       Had the Court of Session not misunderstood the scope of Sec. 125, Cr. C., it would have seen that the finding reached by the Judicial Magistrate with regard to the non-applicant having neglected or refused to maintain the applicant was proper and reasonable and that there was no reason for it to proceed to reappreciate the evidence and take a contrary view in the matter in exercise of its revisionl powers. As mentioned above, the applicant had to leave the house of the non-applicant on 3-6-1975. It was surprising that the non-applicant did not make any effort to bring back his wife and newly born child to their home for a period of about two years. It was only after a notice was served on behalf of the applicant in March, 1977 pointing out the ill-treatment meted out to her, and claiming maintenance for herself and the child, that the non-applicant came forward to state in his reply to the notice that he was willing to maintain her and the child. It was clear from the contents of the said reply that the belated offer to maintain the applicant and child was not bona fide and was made only with a view to wriggle out of the liability.

       It is interesting to note that during the pendency of the present proceedings under Sec. 125, Cr. P. C. the non-applicant had again made another attempt to wriggle out of the liability to maintain the applicant and the minor child by filing a petition for restitution of conjugal rights under the Hindu Marriage Act. It is indeed a sad commentary on the intentions of the non-applicant that in-spite of the Court having made an endeavour to bring about a conciliation between the parties and in spite of the applicant having made another attempt to Li"Ve With the non-applicant in pursuance of the said endeavour the non-applicant could not keep the applicant and the child for more than a couple of months. Ultimately, the petition filed by the non-applicant came to be dismissed by the Court. The interesting part is that the non-applicant wanted to use the factual position as above against the claim for maintenance made by the applicant in the present proceeding. It is not understandable as to how the above-said factual position could be used for denying maintenance to the applicant and child, especially as the Judicial Magistrate very rightly awarded the maintenance from the date of the order and not from the date of making of the application. Revision allowed.