Case: Saygo Bai Vs. Chueeru Bajrangi

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 husbands 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 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. 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 hisitself, stated that he waited foryears 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 theitself, 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 foryears, therefore, thewas 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 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 illtreating her and threw her along with children out of the house. In hershe admitted that on her husbands 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 herthat 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 house of her husband was stopped. It is true that in paragraph 13 of theshe had stated that she had not been to the house of the(respondent herein) foryears and then thei.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on thisadmission to hold that she had abandoned her husband foryears 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 herIn 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. The finding of the Courts that initially she had left the company and desisted from joining the husband foryears and, therefore, she would always beto 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 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 foryears 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 issue ourselves. The appellant in her evidence has claimed that thedrew 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 ofon 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.