JUDGMENT Brijesh Kumar, J.
1. It appears that after a short period of marriage, unfortunately a dispute arose between the parties which ultimately led the respondent to file an application under Section 125, Cr.P.C. before the Family Court. Lucknow. The Additional Principal Judge, Family Court, Lucknow, by order dated 25-1-1990, allowed the application with a direction to the appellant to pay a sum of Rs. 500/ - per month to the respondent towards maintenance from the date of application. Aggrieved by that order, the appellant Abdul Ahad, the husband of the respondent has filed this appeal under Section 19 of the Family Courts Act.
2. We have heard the learned counsels for the parties.
Obviously the case of the respondent was that she was being ill-treated and tortured by the appellant and ultimately turned out of the house by him on 15-3-1982. The marriage between the parties had taken place only in June, 1981. The applicant, namely, the respondent also made allegations that the appellant used to return late in the night in drunken state. He was also alleged to have bad habits of gambling etc. Since she objected to the bad habits of the husband she was beaten. It was also alleged that she had no income of her own and was living with her parents. She was thus, unable to maintain herself and claimed Rs. 500/-, out of the alleged income of Rs. 2000/- per month of the husband.
3. The allegations were denied by the appellant and it was submitted on his behalf that he had always been treating the respondent properly and was still prepared to take her with him as his wife. According to the appellant, his wife and her parents wanted him to leave his home, sell his property and start living at Lucknow with them but he was not prepared to do so. According to the appellant, the respondent is staying away from his company without any reasonable cause. She unjustifiably refused to live with the appellant, hence she was not entitled for maintenance. So far income is concerned, the appellant admits to have inherited the property but stated there is no other source of income. It was also the case of the appellant that he had bequeated his all property in favour of his wife which conduct, would also show that he is not harsh to her and wants her to live with him.
4. Learned counsel for the appellant has submitted that the offer of the appellant given to the respondent to live with him has not been properly considered by the trial court. According to him, the offer is contained in the written statement as well as in the statement recorded by the court during the course of proceedings. Learned counsel appearing on behalf of the respondent submits that the offer was duly considered but the respondent could not agree to the offer because of the ill-treatment meted out at the hands of the appellant. He has brought to our notice the proceeding of the court dated 17-6-1988. The order-sheet of the said date reads as follows :--
Efforts for reconciliation were made. The applicant is not willing to go with the O. P. in spite of given undertaking. She apprehends danger to her life. Reconciliation fails.
5. Learned counsel for the appellant submits that the order sheet only indicates that an effort was made for reconciliation as provided under the Family Courts Act. The matter was not considered in the light of the provisions contained under Section 125 of the Cr.P.C. It has further been submitted that after 17-6-1988 again the appellant has made an offer during the course of statement recorded on 9-1-1990. According to the learned counsel, this offer should have been considered afresh and in view of the provisions contained under Section 125, Cr.P.C. some findings should have been recorded by the trial court as to whether the respondent was justified in not accepting the offer made by the appellant. An effort to bring about reconciliation stands on a different footing. To appreciate the above argument we may peruse the. relevant provisions. The second proviso to Section 125, Cr.P.C. reads as follows, 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 mistress.
It shall be considered to be just ground for his wife's refusal to live with him.
6. In terms of second proviso to Section 125, Cr.P.C. the Court will have to consider the ground of refusal. The Court shall proceed to order for maintenance only when it is satisfied that the ground of refusal is just. There is nothing to indicate that the Court ever considered the question with that angle in view.
7. Section 9 of the Family Courts Act reads as under:--
9. Duty of Family Court to make efforts for settlement.-- (1) In every suit or proceeding, endeavor shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in ariving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3)The power conferred by Sub- section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.
8. We have already quoted the order-sheet dated 17-6-1988 and there is no doubt that only an effort for reconciliation was made. The wife was not ready to live with the husband, namely, the appellant, as she apprehended danger to her life. Whether the Court was satisfied about her refusal or not, was a question to be considered under the provisions of Section 125, Cr.P.C. and in the absence of any such consideration, we feel that the order of the Family Court suffers from illegality. We are unable to accept the contention of the under Section for the respondent that the effort made for reconciliation meets the requirement of the secord proviso to Section 125, Cr ,P.C, In proceedings for settlement, according to Section 9 of the Family Courts Act, an effort for settlement is to be made. Sometime a party may be unreasonable in not settling the dispute, even then, in absence of her consent it shall not be possible to record reconciliation but on refusal to live with the person who made the offer, the Court shall decline to award maintenance if it is satisfied that the refusal is not just.
We again find that after stating the case of respective parties in some detail, the trial Court has recorded its verdict in the last para of the order. It does not disclose any evidence or facts which may have been taken into consideration while arriving at those findings. While recording a finding, much more is required to be done apart from merely stating the case of the parties. The findings are to be based on material on record accompanied by reasons to come to that conclusion. In the present case, no reference, whatsoever, has been made by any fact, circumstances or evidence while recording the conclusions. Learned counsel appearing on behalf of the respondent submits that this Court being the Court of first appeal, may itself appreciate the evidence and record its own findings. We don't think that there exist any such circumstance which may warrant us to do so. Normally evidence is to be appreciated by the trial Court to record its findings. We feel that it will be appropriate that the case is remanded and-ed to the trial Court for passing a fresh order in the light of the observations made in the judgment.
9. On behalf of the appellant, it is submitted that he wanted to produce some witnesses but he was not permitted to do so. It is not necessary to go into the reasons and provide that if any of the parties wants to adduce any evidence, oral or documentary it will be allowed to do so since the case is being remanded to the trial Court and according to appellant he was not allowed to produce his evidence.
10. In the result, the appeal is allowed and the order dated 25-1-1990 passed bv the Family Court is set aside. The case is remanded to Additional Principal Judge, Family Court, Lucknow with a direction to decide the case afresh in the light of the observations made above after providing an opportunity to the parties to adduce any evidence, oral or documentary, if they so want. As far as possible, the Additional Principal Judge, Family Court, Lucknow shall pass the orders within three months of the date of appearance of the parties. The parties shall appear before the Family Court on 17-2-1992.
11. Learned counsel for the respondent made a prayer that during the pendency of the proceedings after remand, the appellant may be directed to continue to pay maintenance allowance at the rate of Rs. 250/- per month as was being done under the interim directions of this Court. Learned counsel for the appellant states that there is no objection to the prayer made. It is, therefore, provided that during pendency of the proceedings after remand before the Additional Principal Judge, Family Court, Lucknow, the appellant shall continue to pay to the respondent a sum of Rs. 250/- per month as agreed on his behalf.