G.MALAVIYA - (1.) SMT. Mira Rani has filed this revision against the judgment dated 9-10-1986 passed by Sessions Judge, Saharanpur in Criminal Revision No. 123 of 1986 Balram Kishore Pathak v. SMT. Mira Rani whereby he set aside the order of the First Additional Munsif/Magistrate, Shahjahanpur dated 22-7-1986 awarding maintenance under Section 125, CrPC in Case No. 170 of 1986 in a tune of Rs. 200/- P.M. from the date of her application under Section 125, CrPC.
(2.) IT is not disputed that marriage of the applicant Smt. Mira Rani was solemnised with Balram Kishore Pathak quite sometime back. However, as per her statement in this case, which she gave on 1-12-1984 she had alleged that about 3-1/2 years back she had been turned out from the house of opposite party Balram Kishore Pathak. The age as given by applicant Mira Rani at the time of her statement was 26 years and in her deposition she had stated that her marriage had taken place 12 or 13 years prior to that date. IT was also stated by her that she had left her in-law's place after about a year. Thereafter her mother had got her back to her house and ever since she is living with her mother. The case of opposite party Balram. Kishore Pathak is that due to fits of epilepsy with which Smt. Mira Rani suffered, the marriage was never consumated and there was some Panchayat in which the parties were treated as divorced in the customary way by separation (Chhutauti), hence applicant Smt. Mira Rani was not entitled to any maintenance. IT was in view of the peculiar facts and circumstances of this case that the application for maintenance moved on 13-6-1983 was once dismissed by the trial Magistrate on 3-12-1984, whereafter on the revision by the applicant, Smt. Mira Rani, the case was remanded when the Magistrate by his order dated 22-7-1986 awarded maintenance of Rs. 200/- P.M. to the applicant which as mentioned earlier, has been set aside in revision by the Sessions Judge on 9-10-1986. The Magistrate while awarding maintenance to the applicant had repelled the contention of the applicant that the marriage which was performed 10 or 11 years prior to the proceedings was null and void being a marriage between two minors, applicant Mira Rani being 13 or 14 years and the opposite party being 16 or 17 years. The Magistrate noted the fact that the opposite party had not challenged the statement of the applicant Smt. Mira Rani that she had been performing her marital duties during the period she had stayed with her husband, despite the fact that in the written statement opposite party had mentioned the fact that he had not physical contact with his wife on account of her fits of epilepsy. The Magistrate also did not accept the contention about the alleged divorce or separation as no such document was produced in the court despite the assertion that the terms of the separation or divorce had been reduced into writing. The Magistrate had drawn the inference that the document if produced would have negatived the plea and as such the fact about the divorce or separation being proved by any Panchayat was not accepted by him. On the point whether the applicant was entitled to live separately from her husband, the Magistrate came to the conclusion that in view of the admitted stand of Balram Kishore Pathak that he had married one Sadhana in 1982, it was permissible for the earlier married wife to claim maintenance by refusing to live with her husband. The Magistrate, however, took into consideration the fact that the applicant was able to earn something by stitching clothes etc. and by considering the fact that her husband was earning about Rs. 600/.- by way of his salary and had some income from cultivation also she deemed it proper to award Rs. 200/-P.M. as maintenance to the applicant Smt. Mira Rani. However, the learned Sessions Judge while disposing of the revision filed by the opposite party found that it was necessary for the applicant Smt. Mira Rani to establish that she was unable to maintain herself. He, however, noted that in her statement she had not stated, so, though her statement shows that she was having no problem as she has stated that ever since she had come back from her husband's place she was living comfortably and she was not having any problem of Kharcha kapra (expenses and clothing) and was doing stitching etc. He found her statement to the effect that it was wrong to say that she had no problem for maintaining herself (Yeh kahna galat hai ki mujhe kapre, khane, pahananane ki takleef nanhi). To the customary reply to the customary question which he felt was not called and which according to the learned Sessions Judge had no value in the face of her earlier statement. Consequently, solely on the ground that the applicant had not established that she was not able to maintain herself the learned Sessions Judge deemed it proper to set aside the order of the Magistrate and rejected the application moved by the applicant.
(3.) I have heard Shri H. N. Sharma, learned counsel for the applicant Smt. Mira Rani and Shri Krishna Raj Singh, learned counsel for opposite party Balram Kishore Pathak and have gone through the judgments as also the statement of Smt. Mira Rani, which had been filed along with the supplementary affidavit of the opposite party Balram Kishore Pathak. It has been argued by Shri H. N. Sharma that the Sessions Judge while disposing of the revision has not upset the finding of the Magistrate on the point that Balram Kishore Pathak had not proved the fact about the separation or divorce between husband and wife with the result that till applicant Mira Rani had not been divorced the liability of the husband to pay maintenance to her existed in the eye of law. The only point to reject the application according to Shri Sharma by the revisional court was that she was not unable to maintain herself. It is also contended by Shri Sharma that even if the marriage might have taken place between 12/13 years back, her entire statement read together indicated that she was turned out 3-1/2 years back which was after about one year of her living in the Sasural (in law's place) should mean that Gauna ceremony (second marriage) may have taken place only 5 or 6 years from the date of her statement.;