Home > Judgement > No maintenance to wife who failed to prove allegations

No maintenance to wife who failed to prove allegations

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CASE NO.:

Appeal (crl.) 1059 of 2003

PETITIONER:

Deb Narayan Halder

RESPONDENT:

Vs.

Smt. Anushree Halder

DATE OF JUDGMENT: 26/08/2003

BENCH:

N. SANTOSH HEGDE & B. P. SINGH.

JUDGMENT:

JUDGMENT

(Arising out of Special Leave Petition (Crl.) No.4047 of 2002)

B.P. SINGH, J.

Leave granted.

The appellant herein is the husband of the respondent.

He has preferred this appeal against the judgment and order

of the High Court of Judicature at Calcutta in CRR No. 973

of 2001 dated 26.11.2001 whereby the High Court while

allowing the Revision Petition preferred by the respondent

directed the appellant to pay a sum of Rs.1500/- per month

by way of maintenance to the respondent and also to pay

costs of Rs.2000/-. While doing so it set aside the order of

the Judicial Magistrate, First Class, Sealdah dated

15.12.2000 passed on the application filed by the respondent

under Section 125 Cr. P.C., in so far as the learned

Magistrate refused the prayer of the respondent for grant of

maintenance to her. The learned Magistrate, however, had

directed the appellant to pay a sum of Rs.1500/- per month

for the maintenance of his son who was residing with the

respondent.

It is not in dispute that the appellant and the

respondent got married on 24th February, 1985. A son was

born to them on 14th January, 1987. They continued to live

together for many years at different places around the city of

Calcutta. On 11th March, 1997, the respondent left her

matrimonial home along with her son and came to reside

with her parents in Calcutta. According to her, she was

tortured over the years by the appellant and ultimately on

11th March, 1997, the appellant forced her to leave her

matrimonial home and threatened her with dire

consequences if she did not do so. For fear of her life and

the life of her son she was compelled to leave the

matrimonial home on that day. Only 4 days later, on 15th

March, 1997, she filed an application under Section 125

Cr.P.C. claiming maintenance for herself and her son.

In her application the respondent alleged that within

15 days of the marriage the appellant started torturing her

both mentally and physically on account of the fact that the

appellant was not satisfied with the meagre dowry brought

by her and also on account of the fact that her appearance

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appeared to the appellant to be ugly. According to the

respondent, the appellant is quarrelsome by nature and he

had the habit of causing annoyance and disturbances to her

for petty reasons. He did not give her the respect due to a

wife and treated her like a maid servant. She tolerated the

cruel treatment meted out to her for many years but

ultimately when she was threatened on 11th March, 1997 by

her husband, she had no option but to leave her matrimonial

home out of fear. She was thereafter forced to live with her

parents. She further stated that her husband was a bank

employee drawing a salary of about eight to ten thousand

rupees per month while she had no source of income. She,

therefore, claimed a sum of Rs.1500 each by way of

maintenance for herself and for her son, and also claimed

costs.

In reply, the appellant stated that he had not

demanded any dowry at the time of marriage nor was any

dowry given. Some gifts were no doubt given to him as well

as his wife which were in the custody of his wife. He did

not torture her nor did he ever misbehave with her for the

reason that she had brought a meagre dowry or that she was

not good looking or for any other reason. However, since

May, 1996 his mother-in-law as well as his wife started

insisting that he should shift his residence to Calcutta. They

picked up a quarrel with him on this issue and in the process

they even abused him. The brother of the respondent and

some others who had come to his house assaulted him,

which compelled the appellant to lodge a report with the

police. After lodging of the report the behaviour of his wife

and mother-in-law became worse, so much so that the

respondent had mixed some poisonous substance in his

drinking water after consuming which the appellant fell ill.

He had lodged a General Diary Entry No.207/97 at the local

police station. He denied the allegations made in the

application and stated that on 11th February, 1997, the

respondent had gone away with her mother along with her

son and came back only on 16th February, 1997. They were

still insisting on the appellant shifting to Calcutta and on his

refusal to do so he was assaulted for which he had lodged a

complaint at the local police station. On 11th March, 1997,

the respondent with her son left on her own after their son

completed his school examination on that day. She left the

home without his consent and during his absence. She did

so on her own without any justifiable cause and only to

compel him to shift his residence to Calcutta. He was still

willing to live with her.

Before the learned Magistrate the respondent

examined three witnesses namely, herself PW-1, her

mother as PW-2 and a bank employee PW-3. On the other

hand, apart from examining himself as OP W-1, the

appellant examined eight other witnesses to prove that he

had never treated the respondent with cruelty, and also to

prove the complaints lodged with the police and some

letters.

The learned Magistrate after examining the evidence

on record came to record the following findings :-

1. There is no evidence to prove that the appellant

ever demanded dowry from the parents of the respondent

before marriage or even after marriage. Even PW-1 did not

state that he had ever demanded dowry but only stated that

he was not happy with the gifts given. Even her mother,

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PW-2 had to admit that the appellant never demanded dowry

but added that he expected dowry. The case, therefore, set

up by the respondent that on account of meagre dowry the

respondent was being harassed was not true. There was not

an iota of evidence of the fact that the appellant had at any

stage even after his marriage demanded any specific article

which was not given to him as a result of which he had

started torturing his wife. No letter was produced to prove

that the respondent ever wrote to anyone in the course of

twelve years complaining about the ill treatment given by

the appellant.

2. Though in the complaint the respondent alleged

that the appellant started torturing her within 15 days of their

marriage, according to PW-2, the mother of the respondent,

she came to know about the ill treatment of his daughter 5 to

6 years after the marriage. On the other hand in her

complaint to the police Ex. 1, PW â\200\2231 stated that she told her

parents about her being tortured by the appellant 8 years

after the marriage. All this shows that the allegations made

by the respondent about her ill treatment at the hands of the

appellant was not true.

3. Though the evidence disclosed that the parties

lived at different places around Calcutta during the period of

twelve years after marriage, no witness was examined by the

respondent to prove that she had been subjected to torture

and cruelty at the hands of the appellant.

4. As regards the second reason namely, the ugly

appearance of the respondent, though such an allegation was

made in the complaint, in the course of her deposition the

respondent did not utter one word in support of the said

allegation. Even in the police report lodged by her, there is

no allegation that she was being ill treated because of her

ugly appearance.

5. There is no evidence to suggest that in view of

their strained relationship any effort was made by the

parents or other relatives to settle their dispute and to effect

a conciliation. It appeared that the father had no say in the

matter, and he was not even examined as a witness to

support the case of the respondent.

6. Though the respondent asserted that she had

made several complaints to the police regarding her ill

treatment by the appellant no such report was proved. The

only report proved, Ex. 1 was lodged after the respondent

had left the matrimonial home.

7. Even the testimony of the respondent proves

that they regularly visited hill stations and other places of

interest on holiday trips, sometimes accompanied by the

relatives of the respondent. She also admitted that the

respondent while talking to others used to give credit to the

respondent for the good performance of their son in his

studies. She also admitted that she completed her B.A. after

marriage while living with the appellant. These facts

disclosed a normal marital relationship and the allegations of

torture and harassment did not appear to be true.

In view of these findings the learned Magistrate came

to conclusion that the respondent had left her matrimonial

home on her own and that she was not compelled by the

appellant to leave her matrimonial home, nor had he

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threatened the respondent with dire consequences if she did

not leave his house. There was no ground for the respondent

to apprehend that if she lived with the appellant her life

would be in danger and that she will be subjected to torture

or cruelty. In sum and substance she had no justifiable

reason to desert the appellant. The fact that the application

for grant of maintenance was filed within four days of her

leaving her matrimonial home without any effort for

reconciliation, was also significant. The learned Magistrate

therefore held that the respondent having left her

matrimonial home without any justifiable ground was not

entitled to the grant of maintenance. However, since her son

was residing with her, the appellant was liable to pay

maintenance for his son. He, therefore, ordered that the

appellant shall pay a sum of rupees 1500 per month by way

of maintenance to his son.

Aggrieved by the order of the learned Magistrate the

respondent preferred a Revision Petition before the High

Court of Calcutta. A learned Judge of the High Court by his

order dated 26th November, 2001 allowed the Revision

Petition and directed the appellant to pay a sum of Rs.1500/-

per month to the respondent also for her maintenance from

the date of filing of the maintenance case and also awarded

costs. The judgment and order of the High Court leaves

much to be desired. The sole virtue of the judgment

appears to be its brevity. The learned Judge allowed the

Revision Application and set aside the order of the learned

Magistrate without even noticing the findings recorded by

the Magistrate, nor is there any discussion in the judgment

of the evidence on record. The only relevant observation in

the judgment is the following :-

” I have perused the evidence of P.W.1 (the

Petitioner herself) and the evidence of PW 2, her

Mother and I find that the Petitioner could prove

her case quite properly. It transpires from the said

evidence that the Petitioner had sufficient reason

for staying away from her matrimonial home as

she was subjected to torture and neglect. On the

contrary, the evidence of the Opposite Party was a

feeble attempt to ward off the allegations made

against him and were not quite convincing. The

evidence of O.P.W. No. 2 who went to make

payment pursuant to the directions of O.P.W. No.

1 does not also appear to be quite convincing. The

evidence of O.P.W. No. 3 in whose house the

Opposite Party has been residing was the Father of

his friend further appears to have been tuned to

suit the case of the Opposite Party. So, also the

evidence of Opposite Party No. 4.

Accordingly, I am of the view that the

finding of the learned Magistrate refusing the

prayer of the Petitioner for maintenance cannot

stand and she is entitled to an order of maintenance

as otherwise she has been able to prove her case

and the finding of the learned Magistrate that she

“has left the house of O.P. without any just ground

and has not been succeeded to establish the

apprehension of danger to her life she is not

entitled to get maintenance from the O.P.” cannot

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be accepted.”

The appellant has impugned the aforesaid judgment of

the High Court before us. We had summoned the parties to

explore the possibility of a conciliation but counsel for the

parties informed us that the respondent was not willing to

live with the appellant.

Learned counsel for the appellant submitted before us,

and with justification, that the judgment and order of the

High Court does not disclose application of mind to the

evidence on record, or to the findings recorded by the Trial

Court, which were sought to be set aside by the impugned

judgment and order. The finding of the High Court is as

vague as it can be and it is not possible to cull out the

reasons which persuaded the learned Judge to set aside the

findings recorded by the Trial Court. We have earlier

quoted the relevant part of the judgment which justifies the

criticism of the learned counsel. It is well settled that the

Appellate or Revisional Court while setting aside the

findings recorded by the Court below must notice those

findings, and if the Appellate or Revisional Court comes to

the conclusion that the findings recorded by the Trial Court

are untenable, record its reasons for coming to the said

conclusion. Where the findings are findings of fact it must

discuss the evidence on record which justify the reversal of

the findings recorded by the Court below. This is

particularly so when findings recorded by the Trial Court are

sought to be set aside by an Appellate or Revisional Court.

One cannot take exception to a judgment merely on the

ground of its brevity, but if the judgment appears to be

cryptic and conclusions are reached without even referring

to the evidence on record or noticing the findings of the

Trial Court, the party aggrieved is entitled to ask for setting

aside of such a judgment. In normal course we would have

remanded the matter to the High Court for a fresh

consideration of the evidence on record, but having regard to

the nature of the dispute, we do not consider it necessary to

prolong the proceeding any further, particularly when the

evidence has been placed before us, and with the assistance

of counsel appearing for the parties we have gone through

the evidence on record. We, therefore, proceed to consider

the evidence on record and dispose of the matter finally.

The respondent was examined as PW-1. In her

deposition, she stated that within 15 to 20 days of the

marriage the appellant started ill treating her without any

reason and even went to the extent of slapping and kicking

her. This was because the articles gifted to them were not to

his liking and he needed more. He used to quarrel with her

for petty reasons and assaulted her on many occasions even

though he did not arrange for her food and clothing. Many a

times he drove her away from his house after assaulting her

and she used to come to her father’s house for shelter.

However, her parents used to persuade her to go back to the

appellant. All this her husband did because of greed. She

referred to the police reports that she lodged, but they were

not produced before the Court. She admitted that the

appellant had taken an agency of Unit Trust of India in her

name and for that purpose he had a joint account with her in

the bank.

We may only notice at this stage that there is not even

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a whisper by the respondent about the second ground

mentioned in the application namely that the appellant

disliked her on account of her ugly appearance. She has

referred to a few incidents which resulted in her lodging

reports before the police and her treatment in a hospital, but

no evidence was produced to prove such facts nor have the

particulars been mentioned by her. She, however, admitted

that she passed her B.A. after her marriage while she was

living with her husband. She also admitted that she and her

husband often went to different places such as Shimla,

Nainital, Kousani etc. every two years. Some photographs

were shown to her from which it appeared that on some

occasions her elder sister and brother-in-law accompanied

them. She also admitted in the course of her crossexamination

that her husband used to praise her before

others and give her credit for the good performance of her

son in studies. He used to say that their son performed well

because of the care bestowed by her. She also admitted that

she attended Yoga classes while at Dum Dum. She also

admitted that when she was taking the B.A. examination her

husband used to accompany her to the examination center.

She stated in her deposition that she was often assaulted

and was made to leave the matrimonial home and had to

seek shelter in the house of her parents but she has not stated

when she first informed her parents about such behaviour of

the appellant. There is only some indication in the

complaint Ex. 1 lodged by her after she left her matrimonial

home wherein she had stated that she had told her parents

about the behaviour of the appellant about eight years after

her marriage. According to PW-2, her mother, the

respondent had told her about such facts some 5 to 6 years

after marriage. No letter written by the respondent to

anyone has been produced to prove that she had ever

complained to anyone about her ill treatment. In substance

there is no evidence of contemporaneous nature to

substantiate the allegations regarding ill treatment of the

respondent. The only complaint which has been brought on

record is the General Diary Entry Ex. 1 recorded on 12th

March, 1997, that is, after she left her matrimonial home.

PW-2, the mother of the respondent deposed in

support of the application. She also stated that her son-inlaw,

namely the appellant, was not satisfied with the items

gifted at the time of marriage since these were not to his

liking and that is why he tortured her daughter who had told

her about such incidents. She, however, admitted that it was

only 5 or 6 years after the marriage that she came to know

that her daughter was being tortured. It appears rather

surprising that if such occurrences took place at regular

intervals, and started within 15 days of the marriage, the

mother of the respondent would have come to know about it

5 or 6 years after the marriage. However, in the General

Diary Entry got recorded by PW-1 she had stated that she

told her mother about such occurrences eight years after

their marriage. There is nothing in the evidence of PW-2 to

support the case that the appellant ever demanded dowry.

On the other hand PW-2 admitted that the appellant never

demanded any dowry even after marriage, but added that

though he never made any demand it was in his mind. From

the evidence on record it appears that the gifts given at the

time of marriage were the usual gifts which are given on

such occasions such as bed, almirah, dressing table, watch,

tape recorder and ornaments for the bride. There is no

evidence whatsoever on record to suggest that before the

marriage, at the stage of negotiations, any demand was made

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or any particular amount or thing was asked for by the

appellant.

On the other hand the appellant has examined himself

as OPW â\200\2231 and denied all the allegations made against him.

He asserted that he had never demanded any dowry at the

time of marriage or thereafter. In fact his relatives and

friends knew that he was in principle against the dowry

system. There was, therefore, no question of his torturing

his wife for not bringing sufficient dowry or for not being

happy with the gifts brought by her. He asserted that he

took good care of his wife and even after marriage he

permitted her to continue her studies and she obtained her

B.A. degree after marriage. He had a joint account with her

which she could operate and he had secured an agency of

Unit Trust of India for her so that it could keep her engaged.

On the contrary, he stated that it was in the year 1996 that

some untoward incident took place and that was because his

mother-in-law as well as the respondent insisted that he

should shift his residence to Calcutta. About such incident

he lodged a report at the police station. He further stated

that on 11.2.1997 the parents of respondent had come to his

house and asked him to live in their house or to take a rented

house near their house in Calcutta. After some argument

they went away. Again on 16th February, 1997, they came

and threatened him that they will take away their daughter

and grandson. An incident took place on that day also,

details of which have been disclosed by him. He also stated,

as was stated by PW-1, that after marriage they frequently

visited many places of interest to them. On the first

marriage anniversary he gifted a Guitar to his wife. In the

year 1986 they went together to Varanasi, Lucknow,

Allahabad. In 1988 they went to Shillong, Guahati, Kamrup

etc. and in 1990 they went to Nainital, in 1993 to

Panchmarhi, Patni, Jabalpur etc. They had gone to Shimla,

Kulu, Manali in 1995. Some photographs were produced

which were taken when he and his wife had visited such

places. The appellant also examined witnesses to prove that

he and his wife enjoyed cordial relationship and this fact

was known to relatives and family friends. He examined

witnesses to prove that while they were together there was

no disturbance in their family life and their relationship was

cordial. The witnesses also support his case that even after

the respondent left his house he had sent his friends to her

with money for her necessary expenses. OPW-2, is a family

friend. He deposed that he had attended the function when

the appellant and respondent got married. He also stated

that he did not find any disturbance in their family life but

he came to know about it in mid 1997. He had once gone to

pay cash to the respondent but the respondent did not accept

it. OPW-3, is a landlady of the appellant. According to her

the appellant took care of his wife and son and did not

torture her even though the respondent was not very

obedient.

Surprisingly, to this witness a suggestion was made

by the cross â\200\223examining counsel that the appellant was in

love with her daughter-in-law and that is why he used to go

to her house. This was of course stoutly denied by OPW-3.

This fact has been noticed by the learned Magistrate but

counsel for the respondent in the course of his argument

before the Magistrate did not pursue this line any further and

stated that the respondent had no grievance about the

character of the appellant. We are surprised that counsel for

the respondent put such a question to the witness when such

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was not the complaint in the application under Section 125

Cr. P.C. nor had the respondent as PW-1 or her mother as

PW-2 stated anything to the effect that the appellant had an

affair with any other lady. Without there being any basis in

the pleadings, or even in the evidence examined by the

applicant, the learned Magistrate should not have permitted

such a question to be put to the witness, particularly when it

reflected not only on the character of the appellant but also

on another lady who was not a party to the proceeding. In

our view, learned Magistrate was remiss in permitting such a

question to be put to the witness and in recording the answer

given by the witness. He should not have permitted such

matters to go on record. This however, discloses the attitude

of the respondent and the extent to which she could go to

malign the appellant and tarnish his image.

OPW-4, is a childhood friend of the appellant and was

present when the negotiation for the marriage took place.

According to him, there was no demand for dowry or any

particular article. After the marriage he used to visit the

house of the appellant and he found that their relationship

was very good. He had also gone two times to the house of

the respondent after she left her matrimonial home at the

behest of the appellant to give some money to her but she

did not accept it. OPW â\200\2236 stated that he was known to the

parties and he had once gone to the house of the father of the

respondent to hand over a letter and some cash and books

etc., but the respondent did not accept them. This witness

also stated that money orders were sent by the appellant to

the respondent.

From the evidence on record we are satisfied that the

findings recorded by the learned Magistrate were fully

justified as they were based on the evidence on record and

appear to us to be reasonable. In her application the

respondent had given two reasons for her ill treatment by the

appellant namely his greed for dowry and that she was not

good looking. So far the second reason is concerned, in the

course of her deposition, the respondent has not said a word

about it. So far as the first reason is concerned, on a careful

scrutiny of the evidence on record, we have also come to the

conclusion that no dowry was ever demanded either before

the marriage or after the marriage. Even PW-2, the mother

of the respondent had to admit that the appellant had never

demanded any dowry or gift. Of course she added that all

this was in his mind. We are, therefore, satisfied that the

Trial Court properly appreciated the evidence on record

while recording the finding that there was never any demand

for dowry by the appellant. There was, therefore, no reason

for him to ill-treat his wife for this reason. We, therefore,

find that both the reasons given in the application for her ill

treatment are non-existent.

We have also perused the evidence on record with a

view to ascertain whether for any other reason the

respondent was ill treated by the appellant. We have found

from the evidence on record that the behaviour of the

appellant has been throughout normal. It is admitted by the

parties that they frequently went during vacations to visit

different places. On some occasions they were even

accompanied by the relatives of the respondent. The

appellant permitted the respondent to continue her studies

even after her marriage and that is how she secured her B.A.

degree after marriage. He also arranged an agency of the

UTI to keep her engaged and also opened a joint account in

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a bank which she could operate. All these facts go to

indicate that for several years after their marriage they

enjoyed normal marital relationship. In fact, there is

evidence to show that the appellant used to praise his wife in

the presence of others by complimenting her and giving her

credit for the good performance of their son in his studies.

This even the respondent has admitted in the course of her

deposition. Apart from these we find it difficult to believe

that if the appellant started torturing the respondent within

15 days of the marriage, the respondent would not have

reported this matter at least to her mother. According to her

mother, she came to know about her ill treatment 5 to 6

years after marriage. According to the respondent in her

complaint Ex. 1 she had mentioned about such happenings

to her mother about eight years after her marriage. While

there is reference to reports lodged by the respondent to the

police regarding torture by the appellant, not one such report

has been brought on record which may have been lodged

before the respondent left her matrimonial home. Even

relevant particulars are not disclosed. The only police report

brought on record is one lodged after the respondent left her

matrimonial home. We do not attach much importance to

this report. There is no contemporaneous document in the

form of letters which may have been written by the

respondent to her friends or relatives mentioning about her

being subjected to torture or harassment by the appellant.

The respondent being an educated lady, it is difficult to

believe that she would not have written letters to her friends

and relatives during the twelve years that she lived with the

appellant as husband and wife. Apart from her mother, the

respondent has produced no evidence of prove that she was

tortured and harassed by the appellant. The learned

Magistrate also noticed that though they lived at different

places around Calcutta during the period of twelve years

after their marriage, not one witness was examined by the

respondent to prove that the appellant treated the respondent

with cruelty. On the other hand, some witnesses have been

examined by the appellant to prove that they lived a normal

life and there was no question of the respondent being

tortured by the appellant for any reason whatsoever. Even

the other facts which we have found support the case of the

appellant that he had not treated the respondent with cruelty

for any reason whatsoever. Learned counsel for the

respondent laid great emphasis on the observation of the

Magistrate that the appellant being a bank employee leaving

for his work in the morning and returning late in the evening

hardly had any time to ill treat the respondent. No doubt,

there is such an observation in the order of the Magistrate,

but that is not the basis of his findings. Too much emphasis

on such a stray observation in the order is not justified.

We therefore hold that the High Court was not

justified in setting aside the findings recorded by the learned

Judicial Magistrate. We have reached this conclusion after

appreciating the evidence on record since there is no

discussion of the evidence in the judgment of the High

Court. Counsel for the respondent posed before us a

question as a part of his submission as to why the respondent

should leave her matrimonial home without any reason. In

cases where there is a dispute between husband and wife it is

very difficult to unravel the true reason for the dispute.

After separation when the relationship turns sour, all sorts of

allegations and counter allegations are made against each

other. Evidence of contemporaneous nature therefore plays

an important role in such cases as it may reveals the thinking

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and attitude of the parties towards each other at the relevant

time. Such evidence is usually found in the form of letters

written by the parties to each other or to their friends and

relatives or recorded in any other document of

contemporaneous nature. If really the respondent was

subjected to cruelty and harassment in the manner alleged by

her, we have no doubt she would have written about such

treatment to her friends and relatives with whom she may

have corresponded. The reports allegedly made by her to

the police may have thrown some light on this aspect of the

matter. Such evidence is completely absent in this case. It

appears to us that the parties lived happily for many years

after the marriage till about the year 1996, whereafter there

was some misunderstanding which ultimately resulted in

their separation. Why this happened, it is difficult to

fathom, but the evidence on record does not convince us that

the respondent was subjected to torture and harassment by

the appellant, and certainly not for the reasons alleged by

her. The Court is not permitted to conjecture and surmise.

It must base its findings on the evidence produced before it

by the parties. The enquiry by the Court is restricted to the

evidence on record and the case pleaded by the parties. It is

not permissible to the Court to conjecture and surmise and

make out a third case not pleaded by the parties only to

answer the query such as the one posed to us.

In the result this appeal is allowed and the impugned

judgment and order of the High Court is set aside.

During the pendency of the proceeding before this

Court it was contended by the respondent that the appellant

had not paid the amount which was payable by way of

maintenance to the son. We had directed the appellant to

pay up the arrears of maintenance and according to the

appellant the amount has been paid. The respondent,

however, has raised some dispute about the amount payable

and according to her some amount is still due. We do not

wish to express any opinion on this dispute and leave it to

the parties to take appropriate proceeding before the

appropriate forum, if so advised.

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Categories: Judgement
  1. July 7, 2013 at 4:39 am

    excellent judgement (m.p singh, Indian Navy. mob-9403657280)

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