Thokala Veera Swamy Vs Thokala Varala Lakshmi

The Criminal Revision Case has been preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’), challenging the order dated 16.05.2012 in Crl.R.P.No.208 of 2011 on the file of the learned III Additional Sessions Judge, Guntur, granting maintenance of Rs.2,000/- (Rupees Two Thousand Only) to the 1^st respondent. The learned Additional Junior Civil Judge, Mangalagiri in M.C.No.14 of 2010 dismissed the maintenance case filed by the 1^st respondent on the ground that the petitioner

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herein had undergone brain surgery, and that both the petitioner and the 1^st respondent had mutually separated by way of a customary divorce.

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I have heard the arguments of the learned counsel for the petitioner, learned Legal Aid Counsel for the 1^st respondent and the learned Assistant Public Prosecutor.

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3 Sri V. Raghu, learned counsel for the petitioner, while reiterating the grounds of the revision, submitted that the 1^st respondent deserted the petitioner by obtaining a divorce as per the caste custom. The 1^st respondent has been living at Obbapuram Village, Danakonda Mandal, Prakasham District, and gave birth to a male child by name Raghu. In that regard, Ex.R1 an attested copy of ration card clearly reflects the name of the 1^st respondent along with her son. It was contended that the 1^st respondent is not entitled to any maintenance. The petitioner is retired from service and is living on his pension. He also underwent brain surgery and is not in a position to work, and he urged to set aside the order passed by the revisional Court.

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On the other hand, Ms. P. Akila Naidu, learned Assistant Public Prosecutor, vehemently argued that the learned revisional Court rightly considered the evidence and passed the order directing the petitioner to pay maintenance of Rs.2,000/- to the 1^st respondent, and urged to dismiss the criminal revision case.

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Sri T. Janardhan Rao, the learned Legal Aid Counsel appearing for the

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1^st respondent, urged that the petitioner is able to maintain his wife/1^st

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respondent. He submitted that the marriage of the petitioner and the 1^st respondent was not officially dissolved by a competent Court. The petitioner, being a retired employee, is drawing a pension, and the amount of Rs.2000/-, being a paltry amount towards the maintenance of his wife, is not a big financial hurdle for the petitioner and urged to dismiss the criminal revision case.

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Thoughtful consideration is bestowed on the arguments advanced by

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the learned counsel for the petitioner and the learned Assistant Public Prosecutor. I have perused the record.

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Now the point for consideration is:

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“Whether the judgment in Crl.R.P.No.208 of 2011 dated 16.05.2012 passed by the learned III Additional Sessions Judge, Guntur, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

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It is apposite to refer to the judgment of the Hon’ble Apex Court in

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Bindeshwari Prasad Singh v State of Bihar¹ wherein at Paragraph No.13

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held as under:

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“13. ... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in the exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.”

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1(2002) 6 SCC 650

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This Court, while exercising its jurisdiction under Section 397 read with Section 401 of ‘the Cr.P.C.,’ cannot invoke its revisional power as a Second Appellate Court and re-appreciation of evidence is not possible in the revision case as laid down in the decision in Bindeshwari Prasad Singh .

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The relationship between the petitioner and the 1^st respondent is not in dispute. The financial status of the petitioner is also not in controversy. The petitioner is a retired railway employee and drawing a pension as per the rules and regulations of the Central Government. It is also an admitted fact that the 1^st respondent has been living away from the petitioner for long time. The 2^nd respondent, according to the petitioner, has been living separately and gave birth to a child by name Raghu. Ex.R1 ration card was confronted the 1^st respondent by drawing her attention to the photograph of a child in Ex.R1, who was with the 1^st respondent, but the 1^st respondent vehemently denied who is he.

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Be that as it may, the petitioner, being a retired employee, is able to maintain his wife, whose marriage has not been officially dissolved by a Court of competent jurisdiction. The material tie in between the petitioner and the 1^st respondent is still subsisting, inasmuch as the petitioner failed to prove satisfactorily that they have a custom and it provides for customary divorce and the provisions of the Hindu Marriage Act, 1955 is not applicable to them. Of course, the petitioner has raised a contention that their marriage was unofficially dissolved by way of a customary divorce. Even a customary

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divorce has been taken by the petitioner and respondent No.1 assuming for a moment for argument sake, yet, it is the observation of the learned revisional Court that the 1^st respondent is unable to maintain herself and entitled for grant of maintenance. Even sub-Section 3 of Section 125 of ‘the Cr.P.C.,’ recognizes the right of Respondent No.1 to claim maintenance as divorced wife.

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The Hon’ble Appex Court in Rohtash Singh v. Ramendri² wherein at para-No.10 held as under:

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“10…Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi [1983 Cri LJ 36 (Cal)].) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.”

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13. Further the Hon’ble Apex Court in Mohd. Abdul Samad v. State of

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Telangana³ wherein at para-No.44 held as under:

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“Since the present case revolves around the expression "a wife who is unable to maintain herself", it is relevant to dwell further on the definition of a wife Under Section 125 of the Code of Criminal Procedure. Explanation (b) thereto defines a

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2 (2000) 3 SCC 180

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3 MANU/SC/0604/2024

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wife to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The definition being inclusive is therefore expansive in nature. A divorced woman who has not remarried as well as a wife are placed on par for the purpose of seeking maintenance.”

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The learned counsel for the petitioner contended that the petitioner and the 1st respondent have been residing separately for a long time, and that the 1^st respondent gave birth to a child, without any substantial proof to show that the child was not born out of the wedlock between the petitioner and the 1st respondent. These contentions have been considered and negated by the learned revisional Court.

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The order of the learned revisional Court is valid and sustainable. The petitioner is bound to maintain his wife. The amount of Rs.2,000/- is sufficiently granted towards maintenance to 1^st respondent. There are no

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merits in the revision case, and the revision case is liable to be dismissed.

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