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Friday, August 26, 2016

Stray admission is no admission = It is true that in paragraph 13 of the cross-examination she had stated that she had not been to the house of the non-applicant (respondent herein) for 4-5 years and then the non-applicant i.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on this so-called admission to hold that she had abandoned her husband for 4-5 years and it is as a result of her refusal to come to the house of her husband that the husband took the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife.

                                     1

                                                            "REPORTABLE"

                  IN THE SUPREME COURT OF INDIA
                 CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO. 2169 OF 2010
          (ARISING OUT OF SLP (CRL.) No. 2060 of 2010)

Saygo Bai                                             ... Appellant

                                  Versus

Chueeru Bajrangi                                      ... Respondent

                           J U D G M E N T


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.
                                       2

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

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
                                           4

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 nor made public the reason for her living in her

parents' house.               Lastly, the Trial Court found that the

children were not living with her and the claim of the

petitioner         (appellant     herein)       in    her    evidence     that    the

respondent-husband abducted away the children secretly was

also not correct.              On account of her not mentioning so in

her application the Trial Court found fault with her and

strangely gave a finding that Saygo Bai had no sufficient

reason to live separately from respondent-husband Chueeru

Bajrangi.          The Trial Court also held that the children,

being appellant Nos.2 and 3 before the Trial Court were not

dependent upon Saygo Bai.               It also found that the respondent
                                              5

husband was justified in getting married again since the

appellant did not go to her husband for 4-5 years and,

therefore,        it    could      not    be       said     that    the     respondent

neglected or avoided to maintain his wife.                          On the basis of

these findings, the Trial Court dismissed the application.


6.     A   revision         was   filed    against         this    order.      It   was

pointed out on behalf of the petitioner (appellant herein)

that   even   if       it    is   accepted         that    she    stayed    away    from

husband     for    4-5       years,      she   was        still    entitled    to   the

maintenance, at least from the date of the application on

account of the respondent having married again and she could

refuse to stay with him on account of the second marriage.

This argument was repelled by the respondent on the ground

that the petitioner (appellant herein) had compelled the

respondent to enter into the second marriage by not staying

with him for 4-5 years.               The Revisional Court very strangely

in paragraph 12 observed that the respondent had become

helpless and, therefore, got married only for his family.

On that ground, the Revisional Court dismissed the revision.


7.     The appellant, therefore, approached the High Court by

way of a petition under Section 482 Cr.P.C.                          It was pointed

out to the High Court by her that she was the legally wedded

wife of the respondent and admittedly the respondent had
                                        6

taken a second wife and, therefore, she was bound to be

granted some maintenance.          On behalf of the respondent, it

was argued before the High Court that the respondent had

contracted       second     marriage    only      after       refusal     of   the

appellant to join him and, therefore, she was not entitled

to any maintenance under Section 125 Cr.P.C. and she may

avail remedy before the Civil Court. The High Court relied

upon   the   so-called      admission        by   the    appellant      that   she

herself had left the house of the respondent and her husband

had come for taking her back with him to his house.                            The

High Court then made a very strange observation that the

appellant had not left the house on the ground of second

marriage performed by the respondent but the respondent had

contracted the marriage on the ground that the appellant

left   the   house    and    failed     to    discharge       her   matrimonial

obligations.       On this ground, the High Court dismissed the

petition.       The appellant is now before us.


8.     To say that we are shocked by the orders passed by all

the three Courts below would be an understatement.                        All the

Courts     below    have     completely       misunderstood         the    second

proviso    of    Section    125   (3)    Cr.P.C.        and   the   Explanation

thereto.     Section 125 (3), Cr.P.C. reads as under:
                             7

          "125.(3) If any person so ordered fails without
     sufficient cause to comply with the order, any such
     Magistrate may, for every breach of the order, issue
     a warrant for levying the amount due in the manner
     provided for levying fines, and may sentence such
     person, for the whole, or any part of each month's
     4[allowance  for the maintenance or the interim
     maintenance and expenses of proceeding, as the case
     may be,] remaining unpaid after the execution of the
     warrant, to imprisonment for a term which may extend
     to one month or until payment if sooner made:

     Provided that no warrant      shall be issued for the
     recovery of any amount due    under this section unless
     application be made to the    Court to levy such amount
     within a period of one year    from the date on which it
     became due:

     Provided further that if such person offers to
     maintain his wife on condition of her living with
     him, and she refuses to live with him, such
     Magistrate may consider any grounds of refusal stated
     by her, and may make an order under this section
     notwithstanding such offer, if he is satisfied that
     there is just ground for so doing.

     Explanation.--If a husband has contracted marriage
     with another woman or keeps a mistress, it shall be
     considered to be just ground for his wife's refusal
     to live with him."

     Instead the Courts below have relied on sub-section (4)

which is as under:


          "(4) No wife shall be entitled to receive an
     4[allowance for the maintenance or the interim
     maintenance and expenses of proceeding, as the case
     may be,] 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."
                                                8

9.     In our opinion, all the Courts below have shown scant

disregard for the second proviso to Section 125 (3) and the

Explanation.              It   was        an    admitted      position       that    the

respondent had taken a second wife, namely, Gulab Bai.                               The

respondent not only admitted this position in his written

statement and evidence but also tried to justify his second

marriage      on    the    ground      that      the      appellant    had    left   his

company and had refused to come back to him and had also not

cared for the children.                   He had to keep the children with

his parents at village Chalani.                      He has, in his examination-

in-chief itself, stated that he waited for 5-6 years in the

hope that his wife would come back and take care of his

children and his parents but he took the second wife since

she    did    not    come      back.           In     fact,   with    this    specific

admission in the examination-in-chief itself, there was no

question of a finding that the appellant was not justified

in claiming the maintenance.                     All the Courts have committed

a    very    serious      error      of    law       in   holding    that    since   the

appellant had left the house for 4-5 years, therefore, the

respondent-husband was justified in getting married again.

Things did not stop here.                      The Courts have gone ahead to

suggest that since the appellant had left the house without

any rhyme or reason, therefore, even if the second marriage

had been contracted, the petitioner (appellant herein) would
                                           9

still not be entitled to the maintenance merely because she

had left the matrimonial house earlier.                    This is completely

erroneous.


10.    We are not satisfied on the appreciation of evidence by

the lower Courts.           We have gone through the evidence of the

appellant      and    the      other       witnesses.           She    has     very

specifically       stated     that     after       the   marriage      till     the

children were born, her relationship was cordial with her

husband.      Thereafter, the respondent brought a second wife,

namely, Gulab Bai at village Chalani where she was residing

in her matrimonial home.             She was very specific in stating

that when the husband brought the second wife, he declared

that    he    would   not    keep    the    appellant      and    started      ill-

treating her and threw her along with children out of the

house.       In her cross-examination, she admitted that on her

husband's request she was not prepared to go to his house.

This question was put to her in a very tricky manner.                            It

was not stated as to at what point of time the husband came

to    take   her   back.       She   has        also   stated    in   her    cross-

examination that her children were with her but for the last

one year they were with the respondent.                    She also admitted

very fairly that the respondent was educating the children.

She also asserted that for the last 4 years her entry to the
                                           10

house of her husband was stopped.                       It is true that in

paragraph 13 of the cross-examination she had stated that

she     had   not    been    to     the    house       of    the     non-applicant

(respondent herein) for 4-5 years and then the non-applicant

i.e. the respondent herein entered into the second marriage

with Gulab Bai.        All the Courts below have relied only on

this so-called admission to hold that she had abandoned her

husband for 4-5 years and it is as a result of her refusal

to come to the house of her husband that the husband took

the second wife.        In fact, this is a totally incorrect and

perverse appreciation of the evidence.                      The Court must read

whole    evidence.     One    stray       admission         cannot       be    read   in

isolation      with    the        other     evidence.              She        has    very

specifically        stated    that        she    was    thrown       out        of    the

matrimonial house on account of the second wife.                                All the

Courts below have ignored all her evidence and chosen to

rely on two lines in paragraph 13 of her cross-examination.

In our opinion, this was wholly perverse appreciation of

evidence.      The Courts have also made a point that she did

not call for a Panchayat and, therefore, have held against

her.    We do not understand the implication of this.                           Even if

she did not call a Panchayat, it did not mean that the

respondent was justified in throwing her out of the house

and getting married second time.
                                      11

11.   The finding of the Courts that initially she had left

the company and desisted from joining the husband for 4-5

years and, therefore, she would always be dis-entitled to

claim maintenance is clearly erroneous and incorrect.                   In

the wake of the admitted second marriage of the respondent,

the appellant would be entitled to claim maintenance and her

earlier refusal to join the company of the respondent would

be of no consequence whatsoever.             In fact from the evidence

we find that she had not forsaken the company of her husband

without any reason.         She was very clear in her evidence that

the respondent stopped visiting the matrimonial house after

his second marriage.         She may not have filed the maintenance

application immediately on her being thrown out but she

asserted that she had taken such action barely within two

years after she was thrown out.             She was very clear that she

was   thrown     out   on    account    of     the   respondent   having

contracted the second marriage.              It is nowhere brought on

record that she had left the house without any rhyme or

reason.    In fact, it would be completely unnatural for her

to leave the house leaving her children as is claimed by the

respondent.      In that backdrop, the claim of the appellant

appears to be correct that she was thrown out along with

children   and    it   was    thereafter      that   the   children   were

brought by the husband.         She was candid enough in admitting
                                     12

that at the time of entering the witness box, it was the

second wife who was taking care of the children.                       This

suggested honesty on the part of the appellant.                  All this

evidence was completely ignored.            We are quite aware that

this Court does not go into the evidence where the Courts

below have recorded concurrent findings of fact.                 However,

where   we find     that   the   appreciation   of    evidence    by    the

Courts below is totally perverse, faulty and unconscionable

findings have been arrived at, this Court would certainly go

to appreciate the evidence on record and that is precisely

what we have done.


12.   We hold that the orders of the Courts below are wholly

incorrect.   Firstly, the Courts erred in holding that she

left the matrimonial house for 4-5 years and refused to join

the company of her husband and, secondly, the Courts are

totally in error in holding that on that count she has lost

the right of maintenance.          In our opinion, the application,

at least insofar as the appellant was concerned, was liable

to be allowed.      We allow that application.


13.   Ordinarily,    we    would   have    remanded   the   matter      for

deciding the amount of maintenance.             However, considering

that the appellant is in the state of penury and not getting

even the interim maintenance, we proceed to decide that
                                            13

issue ourselves.         The appellant in her evidence has claimed

that     the     respondent-husband          drew     a   monthly     salary   of

Rs.2,000/- in the year 1993.             Besides, he also had 20 acres

of land and grew 40 quintals of Paddy crop, 10 quintals of

Wheat crop, 4 quintals of Urad and Rawa crops and Corns etc.

There    is not      even   a    word   of        cross-examination    on   these

claims and these claims have gone unchallenged.                     Even in his

own evidence, the respondent has not uttered even a word

regarding his salary and has merely claimed that Saygo Bai

was maintaining herself by working as a labourer and earned

Rs.45 per day.         He made a bald statement that there was no

immovable property in his name.                    He had also categorically

admitted that after coming out of the matrimonial house he

never maintained Saygo Bai.                   Considering, therefore, the

overall situation, it is obvious that the respondent must be

earning at least Rs.10,000/- per month presently as salary

being a Constable in police force and also has other sources

of income from agricultural properties.                     In that view, we

are     of     the   opinion     that   maintenance        at   the     rate   of

Rs.1,500/- per month in favour of the appellant would be a

proper maintenance.             The maintenance shall be payable from

the date of the application.             The three orders passed by the

Courts below are set aside.              The appeal is allowed in the

above terms.
                   14




                         ..............................J.

                         [V.S. Sirpurkar]




                                   ................................J.

                         [T.S. Thakur]

New Delhi

November 19, 2010



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