Saygo Bai vs Chueeru Bajrangi

2. The appellant Saygo Bai, wife of Chueeru Bajrangi along with her two minor children Jivti (daughter) and Basant (son) filed an application under Section 125 Cr.P.C. against her husband Chueeru Bajrangi. She pointed out therein that her husband had taken a second wife, namely, one Smt. Gulab Bai and that he was a salaried employee in a Government department. However, he was neglecting to maintain Saygo Bai and her two children. She also pleaded that she had cordial relationship with her husband upto year 1989. However, the respondent-husband started avoiding the family. During the year 1990, he took Gulab Bai as his second wife. As a result, the appellant and her children were thrown out. 2 She claimed the maintenance of Rs.3,000/- per person per head. The respondent-husband resisted this application claiming that he always maintained good relations with Saygo Bai and used to visit his village Chalani, where his wife and children resided with his parents, off and on. He claimed that when Basant, the younger child was only six months old, Saygo Bai left her matrimonial house without any rhyme or reason and went to her father's place at village Banda. He further pleaded that he tried to bring back the appellant and had gone to that village along with one Shobha and Haria of his village but she refused to come back. All this, according to him, happened five years prior to the second marriage which he had performed for taking care of his two children. In short, he claimed that two children were always with husband and, therefore, there was no question of abandoning them. The claim of the respondent-husband was that the wife left his company without any rhyme or reason. He then pointed out that it was only after five years of abandonment of matrimonial house that his wife Saygo Bai had filed the application for maintenance under Section 125 Cr.P.C. thereby he further pointed out that she was not entitled to any maintenance as she had left his company without any justification. 3

3. Saygo Bai examined herself in support of her claim and pointed out that till 1989 she used to live along with her two children and the respondent-husband used to visit off and on. However, after he took his second wife, he stopped coming altogether to the village. She also examined one other witness PW-2, Naua. She also spoke about the second marriage of the non-applicant. The third witness Kahru Ram (PW-3) was also examined who was her near relation. She also asserted that the husband Chueeru Bajrangi had contracted the second marriage while the appellant Saygo Bai was living with him. She admitted that the second wife used to take care of the father of the respondent-husband. Kahru Ram was also examined to support the story of the appellant being thrown out of the matrimonial house.

4. On behalf of the respondent-husband, he examined himself and claimed that when he had came to his village from Balangi, where he was posted, his both children were lying unattended in the house and old parents were also not being taken care of and, therefore, he along with one Sona Ram (DW-2) and Jharia Ram (DW-3) went to bring her back and asked her to come back and take care of children and parents but she refused to come back. He, therefore, left the children to the care of his parents and thereafter the 4 appellant waited for 4-5 years and approached the Court only after he got married with Gulab Bai. The two other witnesses supported the evidence of the respondent-husband.

5. The Trial Court has returned a finding that Saygo Bai (appellant herein) had not come to the Court with clean hands. A strange observation has been made that the appellant used to visit her matrimonial house and also used to meet Gulab Bai but she never made any complaint in the village regarding her being driven out of the matrimonial house. Again, the Trial Court, very strangely, gave a finding that the wife-Saygo Bai never tried to hold Panchayat nor made public the reason for her living in her parents' house. Lastly, the Trial Court found that the children were not living with her and the claim of the petitioner (appellant herein) in her evidence that the respondent-husband abducted away the children secretly was also not correct. On account of her not mentioning so in her application the Trial Court found fault with her and strangely gave a finding that Saygo Bai had no sufficient reason to live separately from respondent-husband Chueeru Bajrangi. The Trial Court also held that the children, being appellant Nos.2 and 3 before the Trial Court were not dependent upon Saygo Bai. It also found that the respondent 5 husband was justified in getting married again since the appellant did not go to her husband for 4-5 years and, therefore, it could not be said that the respondent neglected or avoided to maintain his wife. On the basis of these findings, the Trial Court dismissed the application.

6. A revision was filed against this order. It was pointed out on behalf of the petitioner (appellant herein) that even if it is accepted that she stayed away from husband for 4-5 years, she was still entitled to the maintenance, at least from the date of the application on account of the respondent having married again and she could refuse to stay with him on account of the second marriage. This argument was repelled by the respondent on the ground that the petitioner (appellant herein) had compelled the respondent to enter into the second marriage by not staying with him for 4-5 years. The Revisional Court very strangely in paragraph 12 observed that the respondent had become helpless and, therefore, got married only for his family. On that ground, the Revisional Court dismissed the revision.

7. The appellant, therefore, approached the High Court by way of a petition under Section 482 Cr.P.C. It was pointed out to the High Court by her that she was the legally wedded wife of the respondent and admittedly the respondent had 6 taken a second wife and, therefore, she was bound to be granted some maintenance. On behalf of the respondent, it was argued before the High Court that the respondent had contracted second marriage only after refusal of the appellant to join him and, therefore, she was not entitled to any maintenance under Section 125 Cr.P.C. and she may avail remedy before the Civil Court. The High Court relied upon the so-called admission by the appellant that she herself had left the house of the respondent and her husband had come for taking her back with him to his house. The High Court then made a very strange observation that the appellant had not left the house on the ground of second marriage performed by the respondent but the respondent had contracted the marriage on the ground that the appellant left the house and failed to discharge her matrimonial obligations. On this ground, the High Court dismissed the petition. The appellant is now before us.

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 ill- treating her and threw her along with children out of the house. In her cross-examination, she admitted that on her husband's 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 10 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.

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.