CHANCHALA DALBEHERA Vs. TARANISEN DALBEBERA
LAWS(ORI)-1988-10-12
HIGH COURT OF ORISSA
Decided on October 13,1988

Chanchala Dalbehera Appellant
VERSUS
Taranisen Dalbebera Respondents


Referred Judgements :-

SARASWATI MEHER VS. JADUMANI MEHER [REFERRED TO]


JUDGEMENT

V. Gopalaswamy, J. - (1.)THIS revision is preferred against the order of the learned Sessions. Judge, Boudh, Kandhamals, Phulbani holding that the Petitioner is not' entitled to claim any maintenance.
(2.)THE facts giving rise to the present revision, may be briefly stated as follows: The Petitioner Chanchala is the legally married wife of the opposite party Taranisen and they were married in the month of Kartik, 1980 and out of their wedlock a son was born to them. During the period of her pregnancy the opposite party left her at the house of her parents. Even after she gave birth to a child, her husband was not prepared to receive her back though she and her father requested him to take her back and permit her and their son to live with him as the opposite party continued to neglect his wife and son and refused to maintain them, the Petitioner was compelled to file a petition under Section 125, Code of Criminal Procedure claiming maintenance for herself and for her minor son. The learned S. D. J. M. by his order dated 1 -10 -1983 allowed the petition under Section 125, Code of Criminal Procedure and directed the opposite party -husband to pay maintenance at the rate of Rs. 60/ - per month to his wife and at the rate of Rs. 30/ per month to the minor child. Being aggrieved by the said order of the learned S. D. J. M.. Taranisen (the present opposite party) preferred a revision before the learned Sessions Judge, Boudh Khandhamals. The learned Sessions Judge, while confirming the order of the S. D. J. M. granting maintenance in favour of the minor son, disallowed the claim of maintenance by the wife, merely on the ground that the wife was capable of maintaining herself by working as a labourer., Hence the aggrieved wife preferred this revision.
The S. D. J. M. as well as the Sessions Judge found that die Petitioner was the legally married wife of the opposite party and that but of their wedlock a son was born to them. Both the Courts below have concurrently found that the husband (opposite party) is working as a mason and pas sufficient means to maintain his wife and child but be neglected and refused to maintain them. Taking into account the financial means of the husband, the learned S. D. J. M. directed him to pay maintenance at the rate of Rs. 60/ - to his wife and at the rate of Rs. 30/ - to his minor son. The judgment of the learned Sessions Judge discloses, that it was only on the ground that the wife was capable of working as a labourer, he set aside the order of the learned Magistrate passed in her favour awarding her monthly maintenance. In this context, the following observations of this Court in Saraswati Meher v. Jadumani Meher : 62 (1986) C.L.T. 92 are considered very material and relevant, and hence quoted below:

The learned Court below came to a finding that the Petitioner' has been maintaining herself by her manual labour and for that reason she is not entitled to any maintenance. Having gone through the evidence, I am of the view that the said finding cannot be maintained. The learned S. D. J. M. in the impugned order has mentioned that he had noticed the hand of the Petitioner to have stained, with red colour suggesting that she has been working in colouring threads and was capable to maintain herself. Inability to maintain herself cannot be judged in the light of her capacity that she should be absolutely a destitute so as to be entitled to the maintenance. Assuming that the Petitioner has been doing some manual labour after being refused a shelter in her husband's place to make out a bare living, she would not forfeit her right to maintenance from her husband. In the facts and circumstances of this case, it is appropriate that the Petitioner should be allowed maintenance.,

May be Petitioner's wife was once serving as a labourer under the opposite 0 party, when he felt attracted towards her and married her. After her marriage the Petitioner became a house -wife and the mother of his child and therefore, the opposite party (Husband) was legally bound to maintain her and the child. The socio -economic status of a wife depends upon the socio -economic status of her husband. In view of the changed circumstances, the Petitioner (wife) is no longer under any legal, obligation to eke out her livelihood serving as a labourer under stranger. A deserted wife would normally hesitate to go into public seeking employment as she is always apprehensive of unscrupulous scandal mongers who may make her life miserable. As in the present case, when the irresponsible father disowns his responsibility of taking care of his child looking after the welfare of the child becomes a whole -time occupation for the mother. In any event, in view of the above quoted observations of this Court, in Saraswati Meher v. Jadumani Meher : 62 (1986) C.L.T. 92 merely because the wife is capable of working as a labourer, or that she is in fact working as a labourer, she does not forfeit her right to maintenance from her husband. In any view of the matter the view taken by the learned Sessions Judge while rejecting the Petitioner's claim for maintenance is perverse and contrary to law and, the same is therefore, liable to be set aside.

(3.)IN the result: the order of the learned Sessions Judge disallowing the Petitioner's claim of maintenance, is hereby set aside and the order of the learned Magistrate directing the husband (opposite/party) to grant maintenance to the Petitioner at the rate of Rs. 60/ - per month is restored. The Petitioner (wife) is entitled to claim maintenance at the rate of Rs. 60/ - per month from the date of the lower court's order, that is from 1 -10 -1983 onwards.


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