IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. M M O No.40 of 2003 Reserved on: 18.11.2008 Date of decision: November 25, 2008 Smt. Asha Devi & another Petitioners Versus Santosh Kumar Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1.No For the petitioners: Mr. Rakesh Thakur, Advocate For the respondent Mr.J. R.Thakur, Advocate. Surinder Singh, J. In the present petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner-wife has assailed the judgment of the learned Sessions Judge, passed in Criminal revision No.34 of 2001 dated 25.11.2002 whereby order of maintenance at the rate of Rs.500/- awarded to her by the learned Additional Chief Judicial Magistrate, Hamirpur under section 125 of the Code of Criminal Procedure, was reversed on the ground that the petitioner-wife was residing away from the company of the respondent-husband without any “sufficient cause”. Shri Rakesh Thakur, learned counsel for the petitioner- wife has argued that the impugned judgment is unsustainable 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.yes. 2 because the evidence on record shows that the petitioner has sufficient cause for not residing with her husband because of danger to her life and reasons given by the learned Sessions Judge for upsetting the order of maintenance are wrong and illegal being not borne out from the record. Contra, Shri J.R.Thakur, learned counsel for the respondent-husband, while supporting the impugned judgment ventilated that the present petition is not maintainable as there is neither jurisdictional error or patent illegality. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have minutely scrutinized the records of the learned lower courts. What is sufficient cause or a ground for the wife not to live with the husband is to be determined with reference to circumstances of each and individual case with due regard to the social ideas and custom of the community to which the parties belong. The burden lies on the husband to prove her refusal with him. Once the husband proves his willingness to maintain his wife and the refusal of the wife to accept his offer, the burden is on her to prove that there are ‘sufficient grounds’ for living apart. In the instant case, the relationship of wife and husband stands admitted. She has testified on oath that the respondent had maltreated her and demanded dowry. She stated that she was forced to write a letter to her father by the respondent and taken to him by her father-in-law RW2 Roshan Lal. The police inquired into the 3 matter and a compromise Ex.PA was effected by the police in the presence of respectable persons, whereby the respondent undertook to keep her well and not to maltreat and raise the demand of dowry. She deposed that the respondent committed breach thereof. The respondent although stated that a false letter was written by her to her father regarding maltreatment and about threatening to commit suicide by her. The compromise which was executed after the matter was reported to the police on the alleged false allegation by the wife, surprisingly, contains no reference that it was a false allegations, rather the respondent-husband agreed not to maltreat and demand dowry, goes to show that there is some truth in her allegations. The petitioner choosing to live in the house of her parents instead of respondent is an indication that everything was not going on well between them despite compromise. The respondent had shown his willingness to provide her maintenance if she lived with him. But from the evidence on record, I find that she is well justified in living separately on account of maltreatment. The offer to maintain her appears to be not bonafide because the respondent had not shown if he had ever sent her money for subsistence to inculcate confidence in her that he was caring husband. Unless the wife reasonably hope to live with decency and dignity with her husband, she may refuse to live with her husband. The learned Sessions Judge has taken a hyper technical view from the evidence on record to upset the just findings of the learned trial court whereas, the circumstances appearing on 4 record shows that her maltreatment is the real cause for not joining the company of the respondent, thus she is justified to live separately in the circumstances aforesaid but during the period she lives separately she is entitled for the maintenance. On the examination of record, I find that the learned Sessions Judge has traveled beyond the scope and object of section 125 Cr.P.C. and took a technical view of the matter, as such his order reversing the order of maintenance is quashed and set aside and that of the learned Additional Chief Judicial Magistrate is restored. The petition is allowed. November 25, 2008 (Surinder Singh),J. (D)