No Evidence of neglect u/s 125, sent back to Family court

Orissa High Court

Narayan Sahu

vs

Sushama Sahu And Anr. on 31 July, 1991
Equivalent citations: 1992 CriLJ 2912

Bench: A Pasayat
ORDER A. Pasayat, J.

1. Petitioner assails correctness of order passed by learned Sub-Divisional Judicial Magistrate, Jagatsinghpur (in short the ‘SDJMJ’) in an application filed by the opposite party No. 1 Under Section 125 of the Criminal Procedure Code, 1973 (in short the ‘Code), claiming maintenance for herself and her minor daughter (opp. party No. 2).

2. According to the claimant, she married petitioner in the year 1979 according to Hindu rites and customs, and opp. party No. 2 was born out of their wedlock in the year 1984, without any rhyme and reason they have been forcibly driven out from the house of petitioner. It is also alleged that on 1-4-1986 petitioner married one Renubala, daughter of Rama Chandra Sahu of Maganpur according to Gandharb form in the temple of Lord Baladevjau. Claim of Rs. 500/- for each of the opp. parties was made. While petitioner accepted factum of marriage, he disputed allegations of forcibly driving out and second marriage.

3. In order to further their case, opp. parties examined three witnesses, while petitioner examined four. On evaluation of evidence on record, learned S.D.J.M. came to hold that second marriage of petitioner with Renubala was established and, therefore, opp. parties were entitled to separate residence and maintenance. On the quantum of maintenance aspect, he held that there was no clear and convincing evidence regarding income of petitioner; but taking into consideration the present day requirements and status of parties, he fixed monthly allowance of Rs. 300/- and Rs. 200/- for opp. parties Nos. 1 and 2 respectively. The payments were directed to be made from the date of application i.e. 2-1-1987.

4. Learned counsel for petitioner, submits that there is no acceptable evidence in respect of the alleged second marriage and merely on presumptions, learned S.D.J.M. has decided that there was second marriage. It is also submitted that so far as opp. party No. 2 is concerned, even though petitioner has moral obligation to maintain her, in view of the fact that there was no refusal or neglect to maintain her, provisions of Section 125 of the Code have no application. It is specifically urged that opp. party No. 2 was in the custody of petitioner and was being looked after properly; but opposite party No. 1 with an oblique motive got a search warrant issued and took away opposite party No. 2 from his custody. Therefore, question of any neglect or refusal to maintain does not arise. Learned counsel for opposite parties, however, submits that order passed by learned S.D.J.M. suffers from no infirmity and while exercising revisional jurisdiction, there is no scope for interference.

5. I shall first deal with case of opposite party No. 1. In terms of explanation to Sub-section. (3) of Section 125 of the Code, after a husband has contracted marriage with another woman or keeps a mistress, it shall be construed a just ground for his wife’s refusal to live with him. It means that if the wife has a just ground for refusal to live with the husband by reasons of his marrying again or keeping a mistress, the husband must maintain his wife notwithstanding her refusal to live with him. (See Deochand v. State of Maharashtra AIR 1974 SC 1483 : (1974 Cri LJ 1089)). Certain materials have been placed by opposite party No. 1 to show that petitioner had contracted marriage with another woman. This is not a case of absence of any evidence. Learned S.D.J.M. on consideration of materials has come to hold that petitioner married a second time. This being not a case of no evidence, and inference from the available material being a finding of fact, there is no scope for interference while exercising revisional jurisdiction. Further question is whether amount of Rs. 300/- awarded by learned S.D.J.M. is reasonable. Considering high cost of living and barest of bare need of a person, quantum of award does not appear to be unreasonable. Therefore, the same is affirmed.

6. Coming to the question whether petitioner is liable to pay maintenance for opposite party No. 2. It appears that protection Under Section 125 of the Code to a child, be it legitimate or illegitimate has its foundation on neglect or refusal to maintain. ‘Refuse’ means a failure to maintain or a denial of obligation to maintain, after demand, ‘neglect’ on the other hand, means a default or omission, in the absence of a demand. Neglect or refusal may be implied from conduct of a party, and there need not be a formal refusal. A child has no volition or will of his own. Mere failure or omission to maintain may amount to neglect to maintain. There was no material before learned S.D.J.M. in this regard. On the contrary, specific stand of petitioner was that he had never neglected or refused to maintain the child. Since this aspect has not been considered by learned S.D.J.M., I feel that this matter should be re-adjudicated. Parties accept that proceeding is now adjudicable by the Family Court. To avoid unnecessary delay, parties are directed to appear before concerned Family Court on 14-8-1991 when a date of hearing shall be fixed and an early adjudication shall be made. If it holds that there was neglect or refusal to maintain opposite party No. 2, quantum of Rs. 100/-awarded earlier shall be affirmed by it.

7. Criminal Revision is disposed of accordingly.

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