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
15
"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
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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.
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..............................J.
[V.S. Sirpurkar]
................................J.
[T.S. Thakur]
New Delhi
November 19, 2010
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