Tarlok Singh Chauhan, J@mdashThis is rather an unusual case where the right of the petitioner to cross-examine the witnesses of the opposite party has been closed by the order of the Court only because he had stated that he was not in a position to comply with the orders imposing interim maintenance upon him.
The facts, in brief, may be noticed.
2. The petitioner is the husband and was directed to pay interim maintenance of Rs. 3,000/- per month to the respondent from the date of filing of the present petition, i.e. with effect from 3.10.2013 till the disposal of the main petition in proceedings under Section 125 of the Cr.P.C. It appears that application seeking execution of the aforesaid order and the evidence of the respondent in the main petition was fixed on the same date, i.e. 25.6.2015 when the trial Magistrate passed the following order:
"25.6.2015
Present: As above.
Taken up today vide separate office order. Respondent present today and stated that he can not make the payment to the applicant. Statement recorded separately. Therefore, as the respondent has refused to make the payment therefore, no opportunity can be granted to him to cross examination the witnesses of the applicant. Hence, be proceed further and case be now listed for RWs and taking steps within 7 days for 14.8.2015."
3. It is not only surprising, but rather shocking as to how the learned Magistrate passed the aforesaid order without taking into consideration that Section 138 of the Evidence Act confers the valuable right of cross-examining the witnesses tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing the witness to be questioned;
"1. to test his veracity,
2. to discover who he is and what is his position in life, or
3. to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
4. Lord Herschell LC in Browne v. Dunn (1893) 6 R 67 clearly elucidates the principles, underlined those provisions and the same reads thus:
"I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."
5. It cannot be disputed that in order to assess the veracity of a witness, it is necessary to cross examine him and without cross-examination, a party loses his valuable right. No doubt, the proceedings under Section 125 Cr.PC are not stricto sensu ''criminal'' yet it is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In fact, using a statement of the witnesses without affording the opposite party an opportunity to cross-examination, tantamounts to condemning him unheard.
6. Undoubtedly, so long as the order of maintenance continues to exist, the petitioner cannot avoid the same by claiming that he not in a position to pay the same. This court was confronted with a similar position in case titled
"18. The next question, which arises for consideration is as to whether employed wife can be refused maintenance only on the ground that the husband is unemployed.
19. It can never be forgotten that inherent and fundamental principle behind section 12 of the Act is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands that there has to be some acceptable arrangements so that she can sustain herself. Sustenance does not mean and can never allow to mean a mere survival.
20. A woman, who is constrained to leave the matrimonial home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. She cannot be compelled to become a destitute or a beggar.
21. Now, I deal with the plea advanced by the husband that he does not have the job and his survival is on the little pension that his father is getting. Similar question came up before the Hon''ble Supreme Court in
"15. .........Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife''s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in
"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed f or the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the a mount so fixed cannot be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In
"Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in
16.1. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
17. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in
"An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
22. From the aforesaid enunciation of law, it is absolutely clear that once the husband is an able -bodied young m an capable of earning sufficient money, he cannot simply deny his legal obligation of maintaining his wife.
23. It has to be remembered that when the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Some times the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her misfortune. At this stage the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm for which she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. [Ref: Shamima Farooqui v. Shahid Khan (supra)]."
7. Having said so, yet the question still remains as to whether the learned Magistrate could have closed the right of the petitioner to cross-examine the witness only because he had had stated that he could not comply with the order of maintenance. I am afraid, the procedure adopted by the learned Magistrate in passing the impugned order is something totally unknown to law and practice, which not only amounts to denial of fair justice, but also amounts to abuse of power.
8. In case the petitioner had expressed his inability to comply with the order of maintenance, then there are ways and means provided in the Code of Criminal Procedure itself whereby such order could be enforced, but under no circumstances could have the learned Magistrate have closed the right of the petitioner to cross-examine the witnesses of the respondent.
9. In view of the aforesaid discussion, impugned order passed by the learned Magistrate on 25.6.2015 cannot be sustained and is accordingly quashed and set aside. The petitioner is allowed in the aforesaid terms, leaving the parties to bear the costs.
