SAYGO BAIversusCHUEERU BAJRANGI

                  (2010] 13 (ADDL.) S.C.R. 1020


A                           SAYGO BAI
                                  v.
                       CHUEERU BAJRANGI
                (Criminal Appeal No. 2169 of 2010)
                       NOVEMBER 19, 2010
B
            [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

        Code of Criminal Procedure, 1973: s.125(3), second
  proviso; Explanation - Maintenance - Claim by abandoned
c wife for maintenance - Courts below relying upon the
  admission by the wife that she herself left the matrimonial
  home and when her husband came to take her back,· she
  refused to go back and holding that she was not entitled to
  maintenance - Correctness of - Held: Not correct - In the
0 wake of the admitted second marriage of the husband, wife
  would be entitled to claim maintenance and her earlier refusal
  to join the company of the husband would be of no
  consequence - The orders passed by the courts below were
  totally incorrect and on perverse appreciation of the evidence
E - As regards the quantum of maintenance, since the husband
  was a constable in police force and earning Rs.10,000 p.m.
  and having other sources of income from agricultural
  properties, maintenance@ Rs.1,5001- per month would be a
  proper maintenance - Maintenance to be paid from the date
F of the application - Evidence - Maintenance.

           Evidence: Appreciation of - Held: The court must read
    · whole evidence -- One stray admission cannot be read in
      isolation with the other evidence.

G        Appeal: Appeal before Supreme Court - Concurrent
    findings of facts by lower courts - Scope of appreciation of
    evidence - Held: Supreme Court does not go into the
    evidence where the courts below have recorded concurrent
    findings of fact - However. where the appreciation of evidence
H                               1020
        SAYGO BAI v. CHUEERU BAJRANGI                 1021


by the courts below is totally perverse, faulty and           A
unconscionable findings have been arrived at, the Supreme
Court can certainly go to appreciate the evidence on record
- Evidence.

     The appellant-wife filed an application under Section B
125, Cr.P.C. against her husband-respondent for claiming
maintenance for herself and for her two minor children.
She pleaded that her relation was cordial with the
respondent upto the year 1989. However, in the year
1990, the respondent brought second wife and started C
neglecting the appellant and abandoned her and the
children. The respondent claimed that it was the appellant
who abandoned the matrimonial home when the younger
child was 6 months old and went to her father's village.
He claimed that both the children were always with him.
The trial court dismissed the application holding that the D
appellant had not come to the court with clean hands.
The revision petition was also dismissed. The appellant
filed a petition under Section 482 Cr.P.C. before the High
Court. On behalf of the respondent, it was argued before
the High Court that the respondent had contracted E
second marriage only after the refusal of the appellant to
join him and, therefore, the appellant was not entitled to
any maintenance under Section 125 Cr.P.C. The High
Court relied upon the admission by the appellant that she
herself had left the house of the respondent and that her F
husband had come for taking her back with him to his
house, but she refused to go back and, therefore, held
that she failed to discharge her matrimonial obligations.
On this ground, the High Court dismissed the petition.
The instant appeal was filed challenging the order of the G
High Court.

    Allowing the appeal, the Court

   HELD: 1.1. All the courts below completely
misunderstood the second proviso of Section 125(3)            H
   1022 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A Cr.P.C. and the Explanation thereto. Instead, the courts
  below relied on sub-section (4) of Section 125. They
  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
B again. The courts also erred in suggesting that since the
  appellant had left the house without any reason, therefore,
  even if the second marriage was contracted, the appellant
  would still not be entitled to the maintenance merely
  because she had left the matrimonial house earlier. This
c finding was completely erroneous. The appellant 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, where
  she was residing in her matrimonial home. The appellant
  was very specific in stating that when the husband
0
  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
E 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 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
F respondent was educating the children. She also
  asserted that for the last 4 years her entry to the house
  of her husband was stopped. In her cross-examination,
  she had stated that she had not been to the house of the
  respondent for 4-5 years and then the respondent entered
G into the second marriage. All the courts below relied only
  on this so-called admission to hold that she had
  abandoned her husband for 4-5 years and it was a result
  of her refusal to come to the house of her husband that
  the husband took the second wife. In fact, this was a
H totally incorrect and perverse appreciation of the
         SAYGO BAI v. CHUEERU BAJRANGI                    1023


evidence. The court must read whole evidence. One stray            A
admission cannot be read in isolation with the other
evidence. She had very specifically stated that she was
thrown out of the matrimonial house on account of the
second wife. All the courts below ignored all her evidence
and chose to rely on two lines in her cross-examination.           8
This was wholly perverse appreciation of evidence. The
courts below have also made a point that she did not call
for a Panchayat and, therefore, have held against her.
Even if she did not call a Panchayat, it did not mean that
the respondent was justified in throwing her out of the            C
house and getting married second time. [Paras 8, 9, 10]
[1028-F; 1030-B-H; 1031-A-D]
     1.2. The finding of the courts that initially the appellant
had left the company and desisted from joining the
husband for 4-5 years and, therefore, she would always             D
be disentitled to claim maintenance was 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               E
consequence whatsoever. In fact, from the evidence it is
found that she had not forsaken the company of her
husband without any reason. She may not have filed the
maintenance application immediately on her being thrown
out, but she asserted that she had taken such action               F
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. She
was, however, candid enough in admitting that at the time
of entering the witness box, it was the second wife who            G
was taking care of the children. This suggested honesty
on her part. All this evidence was completely ignored.
Ordinarily, the Supreme Court does not go into the
evidence where the courts below have recorded
concurrent findings of fact. However, where the
                                                                   H
    1024 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A appreciation of evidence by the courts below is totally
  perverse and faulty, and unconscionable findings have
  been arrived at, the Supreme Court would certainly go to
  appreciate the evidence on record. [Para 11] (1031-E-H;
  1032-A-D]
B        2. Considering that the appellant was in the state of
    penury and not getting even the interim maintenance, the
    matter for deciding the amount of maintenance is not
    remanded and is decided by this Court. The appellant in
    her evidence had claimed that the respondent-husband
C   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 was
    not even a word of cross-examination on these claims
D   and these claims had gone unchallenged. Even in his
    own evidence, the respondent had not uttered even a
    word regarding his salary and had merely claimed that
    the appellant was maintaining herself by working as a
    labourer and earned Rs.45 per day. He made a bald
E   statement that there was no immovable property in his
    name. He had also categorically admitted that after the
    appellant's going out of the matrimonial house he never
    maintained her. Considering, therefore, the overall
    situation, it would be obvious that the respondent must
F   have been earning at least Rs.10,000/- per month
    presently as salary being a constable in police force and
    also having other sources of income from agricultural
    properties. In that view, maintenance at the rate of
    Rs.1,500/- per month in favour of the appellant is proper
G   maintenance. The maintenance shall be payable from the
    date of the application. The three orders passed by the
    courts below are set aside. [Para 13] [1032-G-H; 1033-A-
    D]
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
H   No. 2169 of 2010.
         SAYGO BAI v. CHUEERU BAJRANGI                      1025.


    From the Judgment & Order dated 14.7.2009 of the High            A
Court of Chhattisgarh at Bilaspur in M.CR.C. No. 992 of 2003.

   Laxmi Arvind, Poonam Prasad, Anuj Kumar, Pradeep
Kumar Mathur for the Apellant.

    Dr. Rajesh Pandey, Mridula Ray Bharadwaj for the                 B
Respondent.

     The Judgment of the Court was delivered by

     V.S. SIRPURKAR, J. 1. Leave granted.                            c
       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. Guiab Bai         D
 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     E
 1990, he took Guiab Bai as his second wife. As a result, the
 appellant and her children were thrown out. 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         F
 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   G
 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    H
    1026 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A 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
B 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. Saygo Bai examined herself in support of her claim and
C 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
D 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
E 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
F 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
G she refused to come back. He, therefore, left the children to the
  care of his parents and thereafter the appellant waited for 4-5
  years and approached the Court only after he got married with
  Guiab Bai. The two other witnesses supported the evidence of
  the respondent-husband.
H
         SAYGO BAI v. CHUEERU BAJRANGI                        1027
               [V.S. SIRPURKAR, J.]

       5. The Trial Court has returned a finding that Saygo Bai        A
(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 Guiab Bai
but she never made any complaint in the village regarding her
being driven out of the matrimonial house. Again, the Trial            B
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                 c
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
                                                                       0
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 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
                                                                       E
 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     F
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                     G
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             H
    1028 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A   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
8
  of the respondent and admittedly the respondent had 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
C 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
D 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
E 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 thr-ee Courts below would be an understatement. All the
F   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:

        "125.(3) If any person so ordered fails without sufficient
        cause to comply with the order, any such Magistrate may,
G       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
H       case may be,] remaining unpaid after the execution of the
        SAYGO BAI v. CHUEERU BAJRANGI                       1029
              [V.S. SIRPURKAR, J.]

    warrant, to imprisonment for a term which may extend to          A
    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         B
    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       C
    section notwithstanding such offer, if he is satisfied that
    there is just ground for so doing.

    Exp/anation.-lf a husband has contracted marriage with
    another woman or keeps a mistress, it shall be considered        D
    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              E
    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    F
    mutual consent."

     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 G
had taken a second wife, namely, Guiab 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. H
    1030 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A 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
B 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
c 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.                                      ·
0
        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
E relationship was cordial with her husband. Thereafter, the
  respondent brought a second wife, namely, Guiab 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
F 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
G 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
H is true that in paragraph 13 of the cross-examination she had
         SAYGO BAI v. CHUEERU BAJRANGI                      1031
               [V.S. SIRPURKAR, J.]

stated that she had not been to the house of the non-applicant       A
(respondent herein) for 4-5 years and then the non-applicant
i.e. the respondent herein entered into the second marriage with
Guiab Bai. All the Courts below have relied only on this so-called
admission to hold that she had abandoned her husband for 4-
                    a
5 years and it is as' result of her refusal to come to the house     B
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      c
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
                                                                     0
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   E
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       F
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              G
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               H
    1032 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A 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
B 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
c 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
0
  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
E 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.
F
       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
G 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 O[l these claims and these claims
H
         SAYGO BAI v. CHUEERU BAJRANGI                     1033
               [V.S. SIRPURKAR, J.]

have gone unchallenged. Even in his own evidence, the               A
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      B
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   c
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      0
terms.

D.G.                                           Appe~I allowed.