“REPORTABLE”

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2169  OF 2010 (ARISING OUT OF SLP (CRL.) No. 2060 of 2010)  

Saygo Bai … Appellant  

Versus

Chueeru Bajrangi … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

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.  

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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.   

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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  

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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  

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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  

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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.   

8. To say that we are shocked by the orders passed by all  

the three Courts below would be an understatement.  All the  

Courts  below  have  completely  misunderstood  the  second  

proviso  of  Section  125  (3)  Cr.P.C.  and  the  Explanation  

thereto.  Section 125 (3), Cr.P.C. reads as under:

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“125.(3) If any person so ordered fails without  sufficient cause to comply with the order, any such  Magistrate may, for every breach of the order, issue  a warrant for levying the amount due in the manner  provided  for  levying  fines,  and  may  sentence  such  person, for the whole, or any part of each month’s  4[allowance  for  the  maintenance  or  the  interim  maintenance and expenses of proceeding, as the case  may be,] remaining unpaid after the execution of the  warrant, to imprisonment for a term which may extend  to one month or until payment if sooner made:

Provided  that  no  warrant  shall  be  issued  for  the  recovery of any amount due under this section unless  application be made to the Court to levy such amount  within a period of one year from the date on which it  became due:

Provided  further  that  if  such  person  offers  to  maintain his wife on condition of her living with  him,  and  she  refuses  to  live  with  him,  such  Magistrate may consider any grounds of refusal stated  by  her,  and  may  make  an  order  under  this  section  notwithstanding such offer, if he is satisfied that  there is just ground for so doing.

Explanation.—If  a  husband  has  contracted  marriage  with another woman or keeps a mistress, it shall be  considered to be just ground for his wife’s refusal  to live with him.”

Instead the Courts below have relied on sub-section (4)  

which is as under:

“(4) No wife shall be entitled to receive an  4[allowance  for  the  maintenance  or  the  interim  maintenance and expenses of proceeding, as the case  may be,] from her husband under this section if she  is living in adultery, or if, without any sufficient  reason, she refuses to live with her husband, or if  they are living separately by mutual consent.”

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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 his examination-

in-chief itself, stated that he waited for 5-6 years 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 the examination-in-chief itself, 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 for 4-5 years, therefore, the  

respondent-husband was 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  

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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  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  

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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.   

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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  

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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  

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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.  Considering, therefore, the  

overall situation, it is obvious that the respondent must be  

earning at least Rs.10,000/- per month presently as salary  

being a Constable in police force and also has other sources  

of income from agricultural properties.  In that view, we  

are  of  the  opinion  that  maintenance  at  the  rate  of  

Rs.1,500/- per month in favour of the appellant would be a  

proper maintenance.  The maintenance shall be payable from  

the date of the application.  The three orders passed by the  

Courts below are set aside.  The appeal is allowed in the  

above terms.

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…………………………J.

[V.S. Sirpurkar]

……………………….....J.

[T.S. Thakur]

New Delhi

November 19, 2010

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