Divorce given by foreign court is conclusive under Indian Law

Divorce given by foreign court is conclusive under Indian law

“Once a decree of divorce is granted by a foreign Court after the parties submit to its jurisdiction and contest the case, the marriage stands validly dissolved, the Bombay High Court has held”.

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                                                                  (1)                                      (11) WP 9356/12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Amk

WRIT PETITION NO. 9356 OF 2012

Kaustubh Sudhir Mestry ..  Petitioner  

Vs.

Praveena Lakshmanan ..  Respondent

Mr. A. M. Vernekar for the Petitioner.

Mr. S. J. Mishra i/b S.R.S. Legal for the Respondent.

CORAM :  MRS. ROSHAN DALVI, J.

Date :      16^th OCTOBER, 2012.

     

ORDER

1. Rule.  Made returnable forthwith.

2. The   petitioner   has  challenged   the   order   of   the  learned   Judge,

Family Court No.7 Mumbai dated 31

st

 July, 2012 dismissing his application to

dismiss the petition for restitution of conjugal rights filed by the respondent­

wife.

3. The parties married in 2006 and went to the U.S.A. in 2006.  They

lived together in the U.S.A. until 2010.  In the meantime they had disputes.

They were residing in the U.S.A.  The petitioner­husband filed the petition for

divorce on the ground of irretrievable breakdown of marriage and also cruelty.

The wife filed a counter claim.  The parties applied for, opposed and ultimately

accepted an interim order by consent.  The parties appeared in person as also

through their respective attorneys in the Judicial District Harris County, Texas,

U.S.A.    The  interim  order  restrained  the   parties  from  entering  upon  their

respective places of residence.  The interim order directed the husband to pay

house rent, car and motor cycle loan and phone bill upto the end of July, 2010,

the order having been passed on 14

th

 July, 2010.  The parties were directed to

pay their personal debts.  There was a temporary restraint order already passed                                                                  (2)                                      (11) WP 9356/12

which both the parties agreed to continue until further orders of the Court.

The husband was directed not to do anything with the J­2 Visa of the wife until

the final decree of divorce.  The wife was directed to allow the husband to get

his books and personal belongings from their residential premises.

4. After  this interim  order was  passed  the wife  came  to  India  on

22.08.2010.   She  filed  the petition  for  restitution of conjugal  rights and an

application under  the Domestic Violence Act  against  the petitioner­husband

and his father and mother.

5. The wife instructed her attorney  to withdraw  the counter claim

and  sent emails  to  that Court  on  30.08.2010  and  31.08.2010.   Hence  the

petition for divorce filed by the husband was to proceed without the counter

claim and without her defence.   She did not appear in  the Judicial District

Harris County, Texas, U.S.A.  thereafter.    The  decree  of  divorce  came  to  be

passed.  The aforesaid interim order, therefore, merged in the final decree of

divorce.

6. Upon  the  decree of  divorce  being  granted,  the marriage  of  the

parties  stood   dissolved.     Hence   the   husband  applied  in   the   Family   Court,

Mumbai  for  dismissal  of  the  petition  of  restitution  of  conjugal  rights  as it

would not then survive.  That application has been dismissed.

7. The wife would contend that the Judicial District Harris County,

Texas, U.S.A. would  have no jurisdiction  and  the  decree  of  divorce  passed

would not become a final judgment conclusive upon both the parties.  This is

upon the premise that she did not appear before the Judicial District Harris

County,  Texas,  U.S.A.     Her   contention   is incorrect.    She   submitted  to  the

jurisdiction of the District court and argued her case on merits.  This can be

seen not only from the counter claim which was filed by her attorney but the

interim order which has been signed by herself.  The parties, therefore, agreed                                                                  (3)                                      (11) WP 9356/12

and consented to the aforesaid interim order.

8. The   wife   would   further   contend   that   she   appeared   under   the

threat of the husband that J­2 Visa would be cancelled.  That case of threat is

rather unusual.  In para 4 of her petition in the Family court she has stated that

due to mental pressure of forcible deportation on the ground that the husband

would withdraw his support so that the J­2 Visa would be cancelled and she

would be deported, she “opposed” the interim application.

9. One   would   accept   a   party   under   threat   not   to   oppose   any

application but her own admission that she opposed the application shows the

submission  to  the jurisdiction  of  that  Court.    She,  therefore,  contested  on

merits  the case of  the husband by  filing a counter claim  and opposing  the

interim application and the order came to be passed as above signed by both

the   parties.  Withdrawing   her   consent   later   after   submitting   to   the   Courts

jurisdiction does not matter.

10. She would further contend that the ground of divorce would be

different in the Courts of the U.S.A. and hence no decree of divorce can stand

in India.  That contention is also incorrect that the grounds of divorce in this

case is not only irretrievable breakdown of marriage but also cruelty which is

recognized by Courts in India.

11. The wife  would  contend  that  as  the  parties were  domiciled in

India the Hindu Marriage Act, 1955 would apply.  They last resided in Mumbai,

India before they went to the U.S.A.  It was for a temporary period.  Hence

their domicile continued.   Hence only Courts in Mumbai,  India would have

jurisdiction.  This would be if the wife did not submit to the jurisdiction of any

other Court and contest the petition on merits as she did.

12. The foreign judgment obtained by the husband being the decree of

divorce is conclusive because it is pronounced by  the Court in  the State in                                                                  (4)                                      (11) WP 9356/12

which they then lived.  It has been given on the merits of the case because the

wife opposed the interim application.  It is not founded upon any breach of any

law in  force in  India because it is  for a decree of divorce inter alia on  the

ground of cruelty which is in terms of the law in force in India.  The judgment

is not ex parte since the wife submitted to the jurisdiction upon being served,

“opposed”   the   interim   reliefs   and   thereafter   instructed   her   attorney   to

withdraw   her   counter   claim   thus   withdrawing   any   defence   against   the

husband's   petition   and   knowingly   allowing   him   to   proceed   with   his   own

petition.

13. Consequently there was no protest by the wife.  There is no fraud

upon which the judgment came to be passed and the threat, if any, resulted in

her opposition in the District Court where she submitted to that jurisdiction.

Hence the judgments relied upon on her behalf  do not apply.

14. The only judgment which applies is the case of Y. Narasimha Rao

& Ors. Vs. Y. Venkata Lakshmi & Anr. (1991) 3 SCC 451.  In para 20 of that

judgment,   upon   considering   the   purview   of   conclusiveness   of   the   foreign

judgments,  the  Supreme Court laid  down  the exceptions when  the  foreign

judgments would be binding upon parties:

(1) That  the   parties  were  habitually  residing  where  the  relief  was

granted.

(2) The respondent submitted to the jurisdiction of the foreign Court

granting  the  relief  and  contested  the  claim  on  the  grounds  available

under the matrimonial law where the parties were married

and

(3) The respondent consented to the grant of relief even though it was

not in accordance with the provisions of matrimonial law of the parties.

15. In this case the parties were then habitually residing in the State

of Texas.  The respondent submitted to the jurisdiction of the Judicial District                                                                  (5)                                      (11) WP 9356/12

Court of Harris County, Texas, U.S.A.  The respondent contested the claim on

the ground of cruelty.  The respondent consented to the interim order passed

as above by signing the interim order herself and also by her attorney.   The

respondent consented to the grant of relief by that Court.

16. This   being  the  law,  the   impugned   order   of   the  learned  Judge

would deserve to be interfered with.  Though it is seen that the learned Judge

has   painstakingly   considered   the   law   relating   to   conclusiveness   of   foreign

judgments, the view taken by the learned Judge in the impugned order seen to

be erroneous.  Once the decree of divorce is granted by a foreign Court after

the   parties   submit   to   its   jurisdiction   and   after   contest   or   agreement,   the

marriage stands validly dissolved.   Nothing  further survives in the marriage.

Therefore the conjugal rights cannot be restituted and hence the petition for

conjugal   rights   or   even   any   other   petition   cannot   proceed   and   must   be

dismissed as infructuous.   It is an abuse of legal process to adjudicate upon

matters  already  decided  by  foreign  Courts  which  are  conclusive  under  the

Indian Laws.  

17. Consequently  the impugned  order of  the learned  Judge, Family

Court   No.7,  Mumbai   dated   31

st

  July,   2012   is   set   aside.     The   petition   for

restitution of conjugal rights  filed by  the wife in  the Family Court, Mumbai

itself stands dismissed.

18. Rule is accordingly made absolute.

(ROSHAN DALVI, J.)

Setting Aside Ex-Parte Divorce Decree

Setting Aside Ex-Parte Divorce Decree

ORISSA HIGH COURT

Siddharth Dixit vs Smt. Sujata Dixit on 11 August, 2010

L.MOHAPATRA, J & C.R.DASH, J.

W.P.(C) NO.14412 OF 2008 ( Decided on 11.08.2010).

SIDDHARTH DIXIT ........... Petitioner.

.Vrs.

SMT. SUJATA DIXIT ............ Opp.Party.

CIVIL PROCEDURE CODE -1908(ACTNO. 5 OF 1908) ORDER-9 RULE-13

For Petitioner - M/s. Yeesan Mohanty, B.C.Mohanty & G.N.Dash.

For Opp.party - M/s. S.K.Padhi, M.Padhi, G.Misra, & A.Das.

M/s. G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty

& B.K.Sahoo.

L.MOHAPATRA, J. This writ application is directed against the order dated 2.9.2008 passed by the learned Judge, Family Court, Rourkela in Misc.Case No.5 of 2008 filed under Order 9, Rule 13 of the Code of Civil Procedure( in short 'C.P.C.') for setting aside the ex parte decree of divorce.

2. The petitioner and the opposite party got married on 18.2.1991 as per Hindu rites and customs at Kolkata. Both of them were blessed with two children, a son namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year 1999. There were differences between both of them during this period and subsequently the relationship became such that they had to remain away from each other. The petitioner thereafter filed Civil Proceeding No.227 of 2005 in the court of the learned Judge, Family Court, Rourkela seeking for divorce. Notice was issued to the opposite party but, the same could not be served. Thereafter, steps for service of notice as provided under Order 5, Rule 20 C.P.C. were taken and in spite of paper publication, the opposite party having not appeared in the case, an ex parte

decree of divorce was passed on 9.3.2006. After waiting for the appeal period, the petitioner contracted second marriage with another woman. The opposite party coming to know about the ex parte decree, filed Misc.Case No.5 of 2008 before the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 C.P.C. to set aside the ex parte decree. In the impugned order, the learned Judge, Family Court having set aside the ex parte decree, this writ application has been filed challenging the same.

3. As it appears from the discussion made by the learned Judge, Family Court in paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil Proceeding, notice was issued to the opposite party, who was staying at Kolkata then. Notice could not be served due to want of time and an application was filed by the petitioner for substituted service under Order 5, Rule 20 C.P.C.. The said petition having been allowed, notice was published in the 'Times of India'. In spite of publication of notice, opposite party having not appeared, an ex parte decree was passed by the court. In the application filed under Order 9, Rule 13 C.P.C., the learned Judge, Family Court came to hold that there was no material before the court to come to a conclusion that the opposite party was avoiding service of notice on her and in absence of such a finding, the application filed by the petitioner under Order 5, Rule 20 could not have been allowed and, therefore, the substituted service made by the petitioner by way of paper publication cannot be held to be a valid service of notice and, accordingly, the ex parte decree of divorce is liable to be set aside.

4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed the impugned order stating that after the ex parte decree was passed, the petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C. could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980 Allahabad 336. In the said reported case, the husband filed a suit for divorce under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the matter was brought before the High Court. The High Court on consideration of different orders passed by the trial court came to a finding that there were some irregularities in service of summons but that would not be a ground for setting aside the ex parte decree and allowed the revision.

5. Though the above decision is silent about the submission of Shri Y. Mohanty, learned Senior Counsel for the petitioner that the only option available to the opposite is to claim for permanent alimony, another decision of Rajasthan High Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte decree of divorce is passed, if the husband has contracted a second marriage after expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at the instance of the wife is not maintainable and the wife can file an application under Section 25 of the Hindu Marriage Act claiming permanent alimony.

6. Shri Dutta, learned counsel appearing for the opposite party submitted that the first notice issued by the court admittedly was not served on the opposite party. The subsequent publication of notice in the 'Times of India' in pursuance of an order passed by the court for substituted service was on a date on which the opposite party was in China and, therefore, had no scope to know about publication of such notice. This submission of the learned counsel, Shri Dutta was seriously opposed by the learned counsel appearing for the petitioner. There is no material before us to show that on the date of publication of notice in the 'Times of India', opposite party was in China. This point was also never taken before the trial court and had such a point been taken, the parties would have been directed to adduce evidence in this regard. Therefore, we decline to entertain a disputed question of fact raised for the first time in this writ application.

7. So far as finding of the learned Judge, Family Court in setting aside the ex parte decree is concerned, we are of the view that such a finding is not sustainable. Admittedly, notice could not be served on the opposite party on the first occasion due to want of time. Therefore, an application was filed by the petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by the court, notice was published in a widely distributed English Newspaper. The court being satisfied with regard to compliance of requirement of Order 5 Rule 20 C.P.C., had permitted the petitioner to take steps for substituted service by way of publication in a widely distributed English Newspaper. Therefore, it is not open for the trial court now to say that grant of permission to the petitioner at that stage was not justified. The ex parte order has not been set aside in any other ground by the trial court in the impugned order.

8. For the reasons stated above, we are of the view that the ground on which the trial court has set aside the ex parte decree is not sustainable and, accordingly, the impugned order is set aside. The petitioner may approach the trial court in an application under Section 25 of the Hindu Marriage Act for permanent alimony in view of the changed circumstances and in the event, such an application is filed, the trial court shall permit the parties to adduce evidence and determine the permanent alimony on the basis of such evidence.

The writ application is accordingly disposed of.

Writ petition disposed of

EX-PARTE DIVORCE DECREE

Ex-Parte Divorce Decree on the basis of refusal of Court Notice/Summon , sent by the court to wife by various mode and several times.

Supreme Court of India

Parimal vs Veena @ Bharti on 8 February, 2011

Bench: P. Sathasivam, B.S. Chauhan

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO...1467... OF 2011

(Arising out of S.L.P.(C) NO. 19632 of 2007)

Parimal ... Appellant Versus

Veena @ Bharti ...Respondent J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order dated 17.7.2007, passed by the High Court of Delhi at New Delhi, in FAO No.63 of 2002, by which the High Court has allowed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter called CPC), reversing the judgment and order dated 11.12.2001, passed by the Additional District Judge, Delhi.

3. FACTS:

(A) Appellant got married to the respondent/wife on 9.12.1986 and out of the said wed lock, a girl was born. The relationship between 1

 the parties did not remain cordial. There was acrimony in the marriage on account of various reasons. Thus, the appellant/husband filed a case for divorce on 27.4.1989, under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, against the respondent/wife. (B) Respondent/wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it. Refusal was reported by the process server, which was proved as Ex.OPW1/B. (C) Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server. The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice. Under the Court's orders, summons were affixed at the house of the respondent/wife, but she chose not to appear.

(D) She was served through public notice on 6.11.1989 published in the newspaper `National Herald' which was sent to her address, 3/47, 2

 First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the respondent/wife in any manner. (E) After service vide publication dated 8.11.1989 as well as by affixation, respondent/wife was proceeded ex- parte in the divorce proceedings. Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.

(F) Two years after the passing of the decree of divorce, on 16.10.1991, the appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.

(G) The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said 3

 application under Order IX, Rule 13 CPC was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.

(H) The trial Court examined the issues involved in the application at length and came to the conclusion that respondent/wife miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same vide order dated 11.12.2001.

(I) Being aggrieved, respondent/wife preferred First Appeal No.63 of 2002 before the Delhi High Court which has been allowed vide judgment and order impugned herein. Hence, this appeal. RIVAL SUBMISSIONS:

4. Shri M.C. Dhingra, Ld. counsel appearing for the appellant has submitted that the service stood completed in terms of statutory provisions of the CPC by the refusal of the respondent to take the summons. Subsequently, the registered post was also not received by her as she refused it. It was only in such circumstances that the trial Court entertained the application of the appellant under Order V, Rule 20 CPC for substituted service. The summons were served by publication in the daily newspaper `National Herald' published from 4

 Delhi which has a very wide circulation and further service of the said newspaper on the respondent/wife by registered post. The High Court committed a grave error by taking into consideration the conduct of the appellant subsequent to the date of decree of divorce which was totally irrelevant and unwarranted for deciding the application under Order IX, Rule 13 CPC. More so, the High Court failed to take note of the hard reality that after two years of the ex-parte decree the appellant got married and now has two major sons from the second wife. Therefore, the appeal deserves to be allowed and the judgment impugned is liable to be set aside.

5. On the contrary, Ms. Geeta Dhingra, Ld. counsel appearing for the respondent/wife has vehemently opposed the appeal, contending that once the respondent/wife made the allegations of fraud and collusion of the appellant with postman etc. as he succeeded in procuring the false report, the burden of proof would be upon the appellant and not upon the respondent/wife to establish that the allegations of fraud or collusion were false. The conduct of the appellant even subsequent to the date of decree of divorce, i.e. not disclosing this fact to the respondent/wife during the proceedings under Section 125 Cr.P.C., disentitles him from any relief before this 5

 court of equity. No interference is required in the matter and the appeal is liable to be dismissed.

6. We have considered the rival submissions made by learned counsel for the parties and perused the record.

7. Order IX, R.13 CPC:

The aforesaid provisions read as under:

"Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the de- cree was passed for an order to set it aside; and if he sat- isfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

xx xx xx" (Emphasis added)

8. It is evident from the above that an ex-parte decree against a 6

 defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there 7

 was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222;Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459)

10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 8

 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

11. While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for 9

 which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. PRESUMPTION OF SERVICE BY REGISTERED POST & BURDEN OF PROOF:

13. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287.

14. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under: "There is presumption of service of a letter sent 1

 under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."

(Emphasis added)

15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

PRESENT CONTROVERSY:

1

16. The case at hand is required to be considered in the light of the aforesaid settled legal propositions. The trial Court after appreciating the entire evidence on record and pleadings taken by the parties recorded the following findings:

"The applicant/wife as per record was served with the notice of the petition, firstly, on 4.5.89 when she had refused to accept the notice of the petition vide registered AD cover for the date of hearing i.e. 6.7.89 and thereafter on 7.8.89 when again she refused to accept the notice for 8.9.89 and thereafter when the notice was published in the newspaper `National Herald' on 6.11.89. The UPC Receipt dated 6.11.89 vide which the newspaper `National Herald' dated 6.11.89 was sent to the respondent/applicant at her address 3/47, First Floor, Geeta Colony, Delhi is on record and has not been rebutted in any manner.

In these circumstances, the application u/o 9 Rule 13 CPC filed by the respondent/applicant/wife on 7.1.1994 is hopelessly barred by time and no sufficient ground has been shown by the applicant/wife for condoning the said inordinate delay."

17. So far as the High Court is concerned, it did not deal with this issue of service of summons or as to whether there was "sufficient cause" for the wife not to appear before the court at all, nor did it set aside the aforesaid findings recorded by the trial Court. The trial Court has dealt with only the aforesaid two issues and nothing else. 1

 The High Court has not dealt with these issues in correct perspective. The High Court has recorded the following findings: "The order sheets of the original file also deserve a look. The case was filed on 1.5.1989. It was ordered that respondent be served vide process fee and Regd. AD for 6.7.1989. The report of process server reveals that process server did not identify the appellant and she was identified by the respondent himself. In next date's report appellant was identified by a witness. The Retd. AD mentions only one word "refused". It does not state that it was tendered to whom and who had refused to accept the notice. The case was adjourned to 8.9.1989. It was recorded that respondent had refused to take the notice. Only one word, "Refused" appears on this registered envelope as well. On 8.9.1989 itself it was reported that respondent had refused notice and permission was sought to move an application under Order 5 Rule 20 of CPC. On 8.9.1989, application under Section 5 Rule 20 CPC was moved and it was ordered that the appellant be served through "National Herald". The presumption of law if any stands rebutted by the statement made by the appellant because she has

stated that she was staying in the said house of her brother for a period of eight months. The version given by her stands supported by the statement made by her brother."

(Emphasis added)

18. The High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother 1

 who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. (Vide Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors., (2008) 7 SCC 663).

19. More so, it is nobody's case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent/wife to examine the postman. It is nobody's case that the "National Herald" daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.

20. The appellate Court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order XLIII, Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order XLI shall apply, so far as may be, to appeals 1

 from orders. In view of the fact that no amendment by Delhi High Court in exercise of its power under Section 122 CPC has been brought to our notice, the procedure prescribed under Order XLI, Rule 31 CPC had to be applied in this case. .

21. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate Court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (vide: Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526; Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146;Santosh Hazari v. Purshottam Tiwari, AIR 2001 SC 965; Madhukar v. Sangram, AIR 2001 SC 2171; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. 1

 Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380).

22. The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial Court's judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551).

23.In view of the aforesaid statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte 1

 decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement.

24. The High Court has not set aside the material findings recorded by the trial Court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate Court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner.

25. In view of the above, appeal succeeds and is allowed. The judgment and order dated 17.7.2007 passed by the High Court of Delhi in FAO No. 63 of 2002 is set aside and the judgment and order of the trial Court dated 11.12.2001 is restored. 1

 Before parting with the case, it may be pertinent to mention here that the court tried to find out the means of re-conciliation of the dispute and in view of the fact that the appellant got married in 1991 and has two major sons, it would not be possible for him to keep the respondent as a wife. A lump sum amount of Rs. 5 lakhs had been offered by Shri M.C. Dhingra, Ld. counsel for the appellant to settle the issue. However, the demand by the respondent/wife had been of Rs. 50 lakhs. Considering the income of the appellant as he had furnished the pay scales etc., the court feels that awarding a sum of Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum amount of maintenance for the future. The said amount be paid by the appellant to the respondent in two equal instalments within a period of six months from today. The first instalment be paid within three months.

.............................J.

(P. SATHASIVAM)

.............................J.

(Dr. B.S. CHAUHAN)

New Delhi,

No Maintenance-Alimony for wife.

Wife cannot Claim Maintenance u/s 125 Crpc, if Divorce proceeding Pending.

Madras High Court

G. Ramanathan vs Revathy

Bench: D Annoussamy

ORDER

1. This is a petition by the husband under S. 482 of the Cr.P.C. to quash the proceedings for maintenance instituted by the wife respondent under section 125 Cr.P.C.

2. The case put forth by the husband is that the petition was filed before the Magistrate’s Court three years after the alleged desertion and therefore there was no emergency as alleged in order to invoke the quick remedy contemplated under section 125 Cr.P.C. He further stated that a divorce proceedings was already pending before the competent civil Court viz., S.P. No. 97 of 1984 and that it was open to the respondent to claim maintenance before that Court under section 24 of the Hindu Marriage Act.

3. The learned counsel appearing for the wife contended before me that the proceedings under section 125 Cr.P.C. and the proceedings under the Hindu Marriage Act are two independent proceedings and therefore even during the pendency of a proceeding under the Hindu Marriage Act it was open to the concerned person to seize the Magistrate. The scheme contemplated under Chap. IX of the Cr.P.C. is one meant to meet emergent situations which the civil Courts cannot decide immediately, and which would cause disorder in the society. That is why it is made part of the Code of Criminal Procedure. Secondly such a provision was introduced for the first time (a) when there was not a complete network of civil Courts all over the country and (b) when the law regarding maintenance was still at a nebulous stage. Now there is a full-fledged law of maintenance, and also a full-fledged law regarding marriage and divorce. Section 24 of the Hindu Marriage Act contemplates maintenance pendente lite and S. 25 of the Act contemplates the grant of maintenance at the time of the decree or even at any time subsequent thereto on application by the concerned person.

4. When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the Civil Court which is already seized. Further under S. 127 of the Cr.P.C. if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore come to the conclusion that the institution of a proceeding under S. 125, Cr.P.C. when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap. IX of the Cr.P.C.

5. In the result, the Cr. Misc. Petition is allowed and the proceedings in M.C. No. 5 of 1985 on the file of the Sub-Divisional Judicial Magistrate, Sankaridurg are quashed

6. Petition allowed.

________________________________________________________________________________________________Another____________________________________________________________

No alimony for woman who desert husband

“Under Sec.125 Cr.P.C a wife who is unable to maintain herself is entitled for maintenance. Under clause 4 of Sec.125 Cr.P.C., She is not entitled to receive such maintenance from her husband if, without any sufficient reason refuses to live with her husband.”

Madras High Court.

K.R. Sagayaraj vs Mrs.C. Rajammal 

DATED: 12.11.2010

CORAM

THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

CRL.O.P.No.22949 of 2009

and M.P.Nos.1 of 2009 and 1 of 2010

K.R. Sagayaraj .... Petitioner

vs

1.Mrs.C. Rajammal

2.S. Vineet Roy ... Respondents

Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.

For petitioner : Mr.T. Arul

For respondents : Mr.Auxilia Peter

O R D E R

The petition is filed seeking a direction to call for the records in M.C.No.379 of 2009 on the file of the learned II Additional Family Court, Chennai and quash the same.

2. A short point arises for consideration in this petition is whether the proceedings under Sec.125 Cr.P.C is maintainable when a civil court has disallowed maintenance for the wife in a civil suit?

3. The petitioner is the husband and the respondents are the wife and chid of the petitioner. The petitioner and the 1st respondent got married on 10.2.1992 according to Christian Rights and Customs. The 2nd respondent was born on 13.8.1993. The matrimonial relationship between the petitioner and the 1st respondent lasted only for a short time and difference arose between them and the matter was taken to various forums for conciliation and the conciliation failed. The husband and wife are living separately from 1997 and the 2nd respondent is with the mother.

4. The 1st respondent filed a suit in OS.No.58/97 before the Family Court at Chennai for maintenance claiming Rs.3000/-for each respondents. The petiitoner filed O.P.No.14/98 for dissolution of marriage on the grounds of desertion and cruelty u/s 10(1)(ix) and 10 of Indian Divorce Act.

5. The petitioner contested the maintenance suit stating that the 1st respondent has deserted him and is living separately without any reason and therefore, she is not entitled for maintenance.

6. The Principal Family Court passed a common order dated 30.6.2004, partly allowing the maintenance suit thereby decreeing a sum of Rs.3000/- for the 2nd respondent/child and held that the 1st respondent is not entitled for maintenance as she has not proved desertion by the husband. The Court has also dismissed the petition for dissolution of marriage as the husband has not proved the desertion and cruelty. Aggrieved by the order of maintenance, the petitioner has preferred in appeal in A.S.No.956/2005 before this court and the same is pending.

7. Meanwhile, the 1st respondent has initiated proceedings under Sec.125 Cr.P.C before the Family Court in M.C.NO.379/2009. The husband has come forward with the above petition to quash the above proceedings on the sole ground that the petition is not maintainable as the civil court has already disallowed the maintenance. Therefore, the only point for consideration arises is whether a subsequent application under Sec.125 Cr.P.C is mainteinable when the wife's suit for maintenance was dismissed on merits.

8. Mr.T.Arul, learned counsel for the petitioner would submit that the civil court had gone into detail in the suit for maintenance and has held that the 1st respondent is not entitled for maintenance and therefore, the subsequent application for the same relief under Sec.125 Cr.P.C is not maintainable.

9. The learned counsel relied on a judgment of the Bombay High Court reported in Vol II 1986 DMC 386 (Muralidhar Chintaman Waghmare vs Pratibha Muralidhar Waghmare and another). The High Court of Bombay answering to a similar question held as follows: "Once the Civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the Criminal Court under Sec.125 Cr.P.C is bound by that decision as proceedings in Civil Court are substantial whereas proceedings under Section 125 Cr.P.C are of a summary nature".

10. The learned counsel relied on a decision reported in 1989 Crl.LJ 2037 (1) (G. Ramanathan vs Mrs. Revathy) wherein David Annoussamy J has held as follows:

" 4. When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the Civil Court which is already seized. Further under S.127 of the Cr.P.C, if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore, the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore come to the conclusion that the institution of a proceeding under Sec.125 Cr.P.C when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap IX of the Cr.P.C.

11. On the contrary Mrs. Auxila Peter, learned counsel for the respondents would submit that the proceedings in a civil court for maintenance is not a bar for the proceedings under Sec.125 Cr.P.C. The learned counsel pointed out that the right under Sec.125 Cr.P.C is an independent right. The learned counsel relied on a decision reported in (1991 (1) MLJ 290 (Vanaja vs Gopu), wherein on consideration of a claim of interim maintenance under Sec.24 of the Hindu Marriage Act and simultaneous claim of maintenance under Sec.125 Cr.P.C , this Court held as follows: "It is thus clear that the right to claim maintenance or litigation expenses under Section 24 of the Hindu Marriage Act, is not made available generally to the parties to a marriage, but only when a proceeding between the spouses is pending under that Act, and in that respect, the right conferred under Section 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions Section 24 of the Hindu Marriage Act. The purpose behind Section 24 of the Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under Section 24 of that Act and its purpose, are borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either under Section 125, Cr.P.C or under the ordinary law".

12. The learned counsel also relied on an unreported judgment in C.R.P(PD) NO.4001 of 2008 dated 25.8.2009, wherein this court has again dealt with the question whether a pre-existing order for payment of maintenance granted by the Chief Judicial Magistrate under Sec.125 Cr.P.C is a bar for maintaining an application under Sec.24 of Hindu Marriage Act and held that it is not a bar and both are independent proceedings.

13. Heard and perused the materials available on record.

14. This is a pathetic case of a wife who has been denied of maintenance from her husband from 1997. She had filed O.S.No.58/97 before the Family Court for maintenance for herself and her child. The Family Court declined to grant the relief holding that she has not proved her case of desertion by her husband. But the Court has granted maintenance for her child against which, the husband has gone an appeal and this court has passed an order of stay on a condition that the husband shall deposit the arrears of maintenance till the date of order. That was the period from 4.12.1997 to 9.11.2005. The petitioner has moved the Family Court again under Sec.125 Cr.P.C in MC No.379 of 2009. This is also opposed by the husband. The parties are governed by the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869. None of the above Acts deals with maintenance to a Christian wife.

15. Sec.37 of the Divorce Act, 1869 reads as follows:

37. Power to order permanent alimony:

Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties" Power to order monthly or weekly payments

In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable;

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.

16. Except this there is no other provision in the Special Acts providing maintenance for a Christian wife.

Sec.125 of Cr.P.C reads as follows:

"Order for maintenance of wife, children and parents:

(1) If any person having sufficient means neglects or refuses to maintain -

(a) his wife, unable to maintain herself

.......

(4) No wife shall be entitled to receive an allowance 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."

17. The right of a Christian wife to claim maintenance under the Divorce Act 1869 is subject to a proceeding under the Act. Unlike the right of a Hindu wife under the Hindu Law or under The Hindu Maintenance and Adoption Act or the right of Muslim woman under the Mohamedan Law, the right of maintenance to a Christian wife is not under any statute. It is based on law of equity and justice. A Division Bench of this Court in Mrs.Stella Pakkam vs Rajiah Ratnam (AIR 1966 Madras 225) S. Ramachandra Iyer, CJ and Kunhamed Kutty, J dealt with the law applicable to the Christians in India and observed as follows: "19.........

That a wife, in England, could not, but for the statute, agitate her claim for maintenance against her husband by an action, is more or less due to a historical development of the law due perhaps to thebasic concept of the spouses being one in the eye of law. That rule has not been accepted in America. There isless reason in this country for the acceptance of any such rule, where under S.9.CP.C the court has jurisdiction to try all suits of a civil nature except those the cognizance of which has been either expressly or impliedly barred.

21. Devasahayam vs Devamony, ILR 16 Mad 133 (AIR 1923 Mad 211) was a case where the husband's application for dissolution of the marriage with his wife was dismissed. But while so doing, the lower court granted a certain sum of money, payable every month as permanent maintenance to the wife. A Bench of this Court held that, apart from the provisions of S.37 of the Indian Divorce Act, there would be no power in the Court to grant permanent alimony and the suit for dissolution of marriage having been dismissed, there was no justification for the award of maintenance. At the same time, it was observed: "If she wants maintenance without either judicial separation or divorce, she can have the remedy only by filing a suit or an application under the Criminal Procedure Code"

A right to agitate the wife's claim to separate maintenance apart from proceedings under the Indian Divorce Act, has thus been accepted".

18. The question whether a Christian wife is entitled for a maintenance from her husband and if so, under what statute and procedure she should adopt for enforcing such a right, will have to be decided not on the technical notions but on principles of equity and justice and by adopting the procedural law. The defences available for refusal of such maintenance by the husband will also based on equity and justice.

19. The method and manner of enforcing this right is by way of filing a civil suit or claiming a maintenance in a proceeding pending under the Divorce Act. Like any other person the Christian wife may also resort to the proceedings under Sec.125 Cr.P.C with an expectation that she would get quicker and speedy relief in those proceedings. The wife is entitled to resort to proceedings before a Civil Court for the enforcement of such maintenance right. It is only the adoption of different methods for the enforcement of right to maintenance.

20. While dealing with the question whether a pre-existing order for payment of maintenance under Sec.125 of Cr.P.C is a bar for maintaining an application under Sec.24 of the Hindu Marriages Act, the Courts are of the uniform view that it is not a bar and both the reliefs are independent of each other. It is well settled that a claim under Sec.24 of the Hindu Marriages Act is a relief of interim maintenance during the pendency of matrimonial proceedings. Initiation of a legal proceedings under the Hindu Marriages Act is a condition precedent whereas the claim under Sec.125 Cr.P.C is a social relief. The civil courts granting maintenance have only to take into consideration of the pre-existing order of such payment of maintenance by the criminal court.

21. The decisions relied on by both counsels deals with the right of a Hindu wife under two enactment. As stated above the Christian wife can claim maintenance from her husband through criminal proceedings and through civil proceedings. She may pursue both criminal and civil proceedings simultaneously as there is no legal bar. Denial of maintenance by a civil court for maintenance will not act as bar for a claim under Sec.125 Cr.P.C.

22. Under Sec.125 Cr.P.C a wife who is unable to maintain herself is entitled for maintenance. Under clause 4 of Sec.125 Cr.P.C., She is not entitled to receive such maintenance from her husband if, without any sufficient reason refuses to live with her husband.

23. The civil suit was dismissed on the ground that the wife has not proved desertion by her husband. The wife has not filed an appeal against this finding, but has chosen an alternative remedy of approaching Criminal Court, which is a statutory right and a summary proceeding. Both are independent rights. While granting maintenance, if there is any pre-existing order of maintenance, the court has to take into consideration of such order to pass a decree. Except that there is no bar for approaching a criminal court under Sec.125 Cr.P.C.

24. The order passed in the civil court will not be a bar. Therefore, there is no merit in the petition. Hence the criminal original petition stands dismissed.

__________________________________________________________________________________________________________________________________

No alimony for woman who desert husband

“From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.”

Uttaranchal High Court

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 201 Of 2006

Smt. Archana Gupta & Another .. Revisionists.

Versus

Sri Rajeev Gupta & Another .Respondents

Mr. M.K. Goyal, learned counsel for the revisionists. Mr. Rakesh Thapliyal, learned counsel for respondent no. 1. Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.

Dated: November 18, 2009

Hon’ble Alok Singh, J.

(By the Court)

Present revision has been filed by the wife under Sections 397/401 Code of Criminal Procedure read with Section 19(4) of Family Courts Act challenging the order dated 05.10.2006 passed by Principal Judge, Family Court, Dehradun refusing to grant maintenance to revisionist no. 1.

Heard Mr. M.K. Goyal, learned counsel for the revisionists, Mr. Rakesh Thapliyal, learned counsel for respondent no. 1 and Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.

Learned counsel for the revisionists contended that finding of the learned Principal Judge, Family Court, Dehradun on issue no. 1 that wife is living separately without any sufficient cause is perverse.

In nutshell, brief facts of the present case are that wife/revisionist no. 1 preferred an application under Section 125 Cr.P.C. against the respondent no. 1 seeking 2

maintenance for herself and for their minor son, revisionist no. 2. The main grounds of claim mentioned in the application are that husband has developed bad habits like consuming alkahol, gambling and adultery. That husband wanted to dispose of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. That husband has taken loan to meet his bad habits. It is further contended that husband is living separately and is not maintaining the wife and son. In paragraph no. 8 of the application, it is pleaded that wife is working in inter-college, Tanko, Saharanpur temporarily from where she is getting Rs. 2200/- per month.

Husband filed his written statement before the trial Court and denied the contentions made by the wife in the application. In defence husband has specifically pleaded that wife is under the influence of her father. That under the pressure of wife and her father husband/opposite party had to execute permanent lease of his property in favour of the wife pertaining to property of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. It is further contended that at the time of execution of lease, it was agreed between the parties that from the date of execution of lease wife would start living with the husband and her father would not interfere in the matrimonial affair of the husband and wife. It was further pleaded by the husband that it is the wife who wanted to live separately under the influence of her father. Further case of husband is that she resigned from the service from where she was getting Rs. 3, 000/- per month and joined the service at Saharanpur for Rs. 2200/- per month, under the influence 3

of her father. No prudent man shall leave the service of the higher pay scale and shall join the service of the lower pay scale. It was further contended by the husband that under the influence of her father, wife neglected the husband. The further case is that wife is residing separately without any cause and reason.

Learned Principal Judge, Family Court, Dehradun has framed three issues in the matter.

1. As to whether wife is living separately without any appropriate reasons from the husband.

2. As to whether the applicant is unable to maintain herself and her son, applicant no. 2.

3. As to whether the applicant is entitled for any maintenance for herself and minor son.

Learned trial Court, while deciding the issue no. 1, has recorded finding of fact that without any sufficient or reasonable cause wife is living separately. Wife has refused to join company of husband despite the fact that husband wanted her to live with him. It was further held by the learned trial court that wife is under the influence of her father and could not prove allegations of bad habits like consumption of alcohol, gambling and adultery against the husband. While deciding the issue nos. 2 and 3, learned trial Court declined to grant any maintenance to the wife on the basis of finding recorded in issue no. 1 and on the ground that wife is employed and getting Rs. 2200/- per month. However, learned trial Court granted Rs. 2000/- per month as maintenance for applicant no. 2, i.e. minor son.

Sub Section 4 of Section 125 Cr.P.C. can be pressed in the present matter, which reads as under: 4

“(4) No wife shall be entitled to receive an [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”.

From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.

I, myself, carefully perused the statements recorded by learned trial court. I find no perversity in the findings of fact recorded by learned Principal Judge, Family Court, Dehradun of the fact that wife is living separately without any sufficient cause and reason and she refused to live with her husband without any sufficient reason. In view of findings that wife is residing separately from her husband without reasonable cause and reason, her application seeking maintenance was rightly rejected by the learned trial Court.

Wife is entitled for maintenance from the husband under sub Section a (1) of Section 125 Cr.P.C., if she is unable to maintain herself. As per the admission made by the wife in the application under Section 125 CrPC and as per the finding recorded by the learned Principal Judge, 5

Family Court, Dehradun, wife is employed in a school and getting salary of Rs. 2200/- per month. Revisionist/wife nowhere says that out of this amount of Rs. 2200/- she is unable to maintain herself. On this ground also revisionist is not entitled for any maintenance from the husband.

Having perused the record and findings recorded by the Principal Judge, Family Court, Dehradun, I do not find any valid reason to interfere with the findings of fact recorded by the learned trial Court. The impugned judgment is hereby confirmed. Revision is dismissed.

No order as to costs.

(Alok Singh, J.

 __________________________________________________________________________________________________________________________________________________________________

No alimony for woman who desert husband

“The above, Shiv Kumar,husband of Santoshi Bai has been able to
discharge his primary burden that Santoshi Bai is residing separately without
any sufficient reason and Santoshi Bai has not been able to establish and prove
her case. Therefore, the finding of the learned 3rd Additional Sessions Judge
that there is sufficient reason for Santoshi Bai to live separately is perverse
and contrary to the evidence available on record, which cannot be sustained for
the reasons mentioned hereinbefore this order.”

HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.544 of 2003

Shiv Kumar Yadav, S/o Videsi Yadav
Aged about 27 years, Cultivator,
R/o Village Kanhera, Thana Khandsara,
Tehsil Saja, District Durg. … Petitioners

Versus

Smt. Santoshii Yadav, W/o Shiv Kumar Yadav,
aged about 22 years, R/o village Bhinpuri,
Present Address: Navapara,Tehsil Bemetara, District Durg… Respondents

Shri Sanjay S. Agrawal, counsel for the petitioner.
Shri V.D. Bajpai, counsel for the respondent.

As per L.C. Bhadoo J.

Date: 15/02/2004

:O R D E R

1. The petitioner has preferred this revision under Section 397 read with
Section 401 of the Cr.P.C. 1973, being aggrieved by the order dated 18- 10-2003
passed by the 3rd Additional District and Sessions Judge (F.T.C.), Bemetara
whereby he reversed the order dated 8-1-99 passed by the
Judicial Magistrate, First Class, Bemetara, in Misc. Criminal Case
No.20/1997 whereby the learned Judicial Magistrate rejected the application of
respondent Smt. Santoshi Bai filed under Section 125 of the Cr.P.C. for grant
of maintenance.

2. Brief facts leading to filing of this revision petition are that the marriage
of the petitioner
and respondent (hereinafter Shiv Kumar Yadav- husband will be referred as
petitioner and wife
Santoshi Bail will be referred as respondent) was solemnized one and half year
before the filing of the application under Section 125 of the Cr.P.C. by
respondent on 6-9-1996. After two months of the marriage Gauna ceremony took
place and the petitioner took the respondent to his residence at
village Kanhera. Both the parties lived together for 4 to 5 months and as per
the allegations in the application the petitioner herein started
harassing,ill-treating and subjected to cruelty to
respondent for bringing dowry. Thereafter, on Teja festival the respondent was
taken by her relatives to Bemetara. After celebration of Teja festival the
maternal grandmother of respondent namely, Jhaman Bai and grandfather namely,
Siyaram Yadav along with respondent came to her in-laws house at Kanhera for
leaving the respondent at her in-laws’ house. However, the petitioner started
abusing them saying that he would not keep the respondent at his residence, but
her grandmother and grandfather left her at her in-laws’ house.

3. As per the allegations of respondent, five months prior to filing of the
application under
Section 125 of the Cr.P.C. the petitioner took the respondent along with him
and left her at the Bus stand of Bemetara and disappeared. After waiting 3 to
4 hours she had left for her maternal
grandmother’s house. The parents of respondent are labourers and they are not
able to maintain the respondent and the respondent is unable to maintain
herself, whereas the petitioner’s annual income from agricultural sources was
said to be Rs.20,000/- and the applicant is earning round about Rs.900/- per
month by doing the labour job.

4. The reply of the application was filed by the petitioner herein before the
Magistrate in which he denied all the allegations and on the contrary he said
that the respondent herself does not want to live with the petitioner and he
was ready and willing to bring her at his residence and for that purpose he
filed an application before the Sub Divisional Magistrate under Section
98 of the Cr.P.C. in which the learned S.D.M. recorded the statement of the
respondent and before that Court the respondent categorically stated that she
does not want to go to her in-laws house even if her husband gives assurance
that he would not demand dowry and harass her. After recording the evidence of
the parties, the learned Judicial Magistrate Bemetara, dismissed the
application of the respondent under Section 125 of the Cr.P.C. on the ground
that the respondent herself does not want to live with the petitioner without
any sufficient reason. However, on a revision filed by the respondent the
learned 3rd Additional Sessions Judge (F.T.C.),Bemetara reversed the finding of
the Judicial Magistrate holding that the petitioner
does not want to keep the respondent and the respondent was living separately
for sufficient reasons and granted maintenance of Rs.500/- per month in favour
of the respondent.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner while assailing the impugned order passed
by the learned
3rd Additional Sessions Judge, argued only on one ground that the respondent
disentitled herself for the maintenance on the ground that she herself does not
want to go to her in-laws house without sufficient reason. He further
argued that the finding of the learned 3rd Additional Sessions Judge is
perverse,incorrect,illegal and contrary to the evidence on record. Therefore, he
submitted that the order of the learned 3rd Additional Sessions Judge be
set aside and that of Judicial Magistrate First Class, be restored.

7. On the other hand, Mr. V.D. Bajpai,learned Sr. counsel for the respondent
argued that as per the evidence on record the petitioner is responsible for
neglecting the respondent to maintain her. Moreover, petitioner started
harassing,ill-treating and subjected to cruelty to
the respondent for not bringing the dowry i.e., Television, Radio, Cycle,
Almirah and cash and as the petitioner used to ill-treat the respondent and beat
her,therefore,it was not possible for the respondent to reside with the
petitioner.

8. Therefore,in view of the points raised by the learned counsel for the parties
a very limited point remains for consideration of this Court i.e. as to whether
the respondent started residing separately without sufficient reason. In this
connection the provisions of sub-section (4) of
Section 125 of the Cr.P.C.,are relevant which read as under:

“No wife shall be entitled to receive an allowance 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”.

Therefore, in order to attract the provisions of sub-section (4) of Section 125
of the Cr.P.C., the petitioner was required to prove that the respondent-wife
started living separately with her maternal grand-mother without any
sufficient reason and thereby she disentitled herself for maintenance allowance
and in this connection, the learned counsel for the petitioner placed reliance
on the decision reported in 1978 CRI. L.J. 1645 in the matter of Mammad Kunhi
Vs. Rukhiya, in which Kerala High Court has held that;

“There are three circumstances under which the normal obligation of the
husband to maintain the wife will stand negatived. These are: (a) where the wife
is living in adultery, (b) where the wife and husband are living separately by
mutual consent and (c) where the wife refuses to live with her husband
without sufficient reason. The burden of proving the existing of any of the
threecircumstances,as the case may be, lies on the husband. The wife’s refusal
can be proved by the husband indicating that he is willing to allow the wife to
live
with him,that he is ready to take her to his home for residence with him,
but nevertheless she is not willing. But when one i.e., proved it would
be for the wife to show that there are sufficient reasons for her living
apart from the husband. The burden of proof of showing the justifiable
reason must in such circumstances rest not on the husband”.

9. Therefore, in the light of the above provision of sub-section (4) of Section
125 of the Cr.P.C., and the above judgment,if we look into the evidence adduced
by the parties in the present matter, we have to examine that whether the
petitioner herein has been able to discharge his
burden as laid down in Kerala High Court judgment and whether the respondent has
been able to rebut the evidence of the husband. If we look into the petition
filed by the respondent in which she has categorically mentioned in para 4 and
5 of the petition that 4 – 5 months after Gauna ceremony, petitioner’s husband
started demanding dowry in cash and ill-treating her and subjected to cruelty
and that was seen by one Lobin Yadav at village Kanhera that she continued to
reside with her husband maintaining decorum looking to the back ground of her
family. In para five of the petition, she has further stated that after
celebrating Teeja festival when her maternal grand- mother – Jhaman Bai and
grand-father – Siyaram Yadav went to drop her at her in-laws house, the
non-petitioner, her husband started abusing and said that he would not keep her
at his residence, but her grand-mother and grand-father left her at Kenhara
whereas the evidence in order to prove these allegations against the husband
led by the wife – respondent herein,is totally contrary. In her evidence she
has stated that her husband started demanding Cycle,Almirah, Television and for
that purpose he started subjecting her to cruelty and beating. In the
application under Section 125 of the Cr.P.C., in para 4 of the petition,
Santoshii Bai has simply stated that her husband started demanding rupees. She
had not mentioned about the Cycle,Television and Almirah and in the evidence
she has not stated that her husband demanded cash. Moreover, she has mentioned
in para 4 of the application that this fact was seen by one Lobhin Yadav,but
that Lobhin Yadav has not been produced in evidence in order to support the
allegation made in the application. In her evidence before the Court she has
stated that she had not disclosed this fact to any one. In the cross-examination
she has stated that at village Kanhera her father’s sister and her husband are
residing and she used to visit regularly their house, why she had not disclosed
this fact to them, itself shows that she was never subjected to cruelty or
otherwise in the normal circumstances when she was regularly visiting their
house, she ought to have disclosed the fact i.e., harassment, cruelty and
beating. She has not produced any evidence to corroborate her evidence and
stated that Siyaram Yadav,grandfather dropped her at her in-laws house after
Teeja festival,but he has not been examined by her, on the contrary he had been
examined by the applicant as Witness No.4 and Siyaram has specifically stated in
his evidence that Santoshi Bai is his grand-daughter.In para 3 of his evidence,
he has stated that he went to drop her at Kanhera after Teeja Festival and she
remained there for 15 days and when he went to drop her at her in-laws house she
started coming back and then he advised her to remain in her in-laws house
and thereafter with very difficulty she remained in her in-laws house for
15 days and came back to Bemetara. He has further stated that in their
caste the dowry is not given or taken. He is the real grandfather of Santoshii
Bai and he has not stated anywhere that her husband Shiv Kumar was harassing
or subjecting to cruelty to Santoshii Bai for bringing dowry. In para 5 of the
application it has been mentioned by Santoshii Bai that her husband Shiv
Kumar started abusing Jhaman Bai and Siyaram Yadav when they went to leave her
at her in-laws house. This fact has not been corroborated by
Siyaram Yadav. Moreover, Siyaram Yadav in his evidence has stated that he
does not know as to whether when she came from her in- laws house, she
had said about the demand of dowry. He does not know whether Santoshi Bai
had stated that if she will be sent back to her in- laws house, then
there was a danger to her life. It is wrong to say that maternal grandmother
of Santoshi Bai had ever told him that in-laws of Santoshi Bai were
harassing her. In para 10 of his evidence, he stated that when he went to
drop Santoshii Bai at her in-laws house, at that time only mother-in-law and
father-in-law of were at residence and Shiv Kumar was not at the residence.
He was out of the house for the purpose of doing the work. Therefore, this
evidence of the witness is totally contrary to the allegation levelled by
respondent in para no.5 of her petition in which she has mentioned that Shiv
Kumar abused her grand- father – Siyaram Yadav and grand-mother – Jhaman
Bai, therefore, the ground taken by Santoshi Bai for living separately in
para 4 and 5 of the petition has not been proved but a contrary
evidence has been led by her in her statement. Even as mentioned above, her
grandfather Siyaram Yadav and her real uncle have not supported her case. If
she is being harassed by the husband then why she has not disclosed this fact
to her grand-father and grand-mother and why she did not report the matter
to the Police. No reasons have been assigned by Santoshi Bai. More-over
if we look into the conduct of Santoshi Bai, her husband Shiv Kumar
filed the petition under Section 98 of Cr.P.C., before S.D.M. Court in
which her statement was recorded by SDM. She has categorically stated that
now even if her husband undertakes not to beat her and not to demand of dowry,
even then she was not prepared to go her in-laws house. This fact itself
negatived the claim of Santoshi Bai that there is apprehension of her life
that is why she does want to go to her husband’s house.

9. On the other hand, Shiv Kumar, husband of Santoshi Bai,has categorically
stated that he had never asked for any dowry and he had never beaten her and
when he went to village Bhinpuri to bring the respondent to his residence, she
was not there and she was residing with her maternal grand-mother – Jhaman Bai.
He further stated that their marriage took place in village Binpuri and the
marriage of Santoshi Bai was arranged by her grand- father Siyaram Yadav.
Therefore, he had gone to Bhinpuri to bring Santoshi Bai as their marriage took
place at Bhinpuri. He filed an application before SDM Court to bring Santoshi
Bai and in that application Santoshi Bai has stated that she does not want to
go her in-laws house. He has further stated that Santoshi Bai asked him that
she would go to Mungeli and instead of going to Mungeli she went to Bemetara
and after leaving him at the bus stand, she went to her grand-mother’s house.She
has stated that she is being maintained by her maternal grandmother on her
own will. His mother- in-law and his mother-in-law’s sister are also residing
with the grand-mother of Santoshi Bai. As he is handicapped that is why she does
not like him and she says that he is not able to satisfy her.

10. In view of the above evidence on record, the petitioner herein Shiv Kumar
filed the petition under Section 98 of the Cr.P.C., before the S.D.M. Court to
bring Santoshi Bai to his house, but in that petition Santoshi Bai deposed
before the SDM that she does not want to go to her in-laws house even if he
assures that he will not demand of dowry, harass and beat. The charges levelled
by Santoshi Bai have been denied by Shiv Kumar – husband of the respondent and
specific charges levelled by Santoshi Bai for living separately, she has not
been able to prove these charges. More- over she led evidence contrary to the
allegations levelled against him in the petition itself. The petitioner has
been able to discharge his burden as he filed the petition for bringing her
to his house, but she had declined to come to his house. Moreover, he went to
village Bhinpuri to bring his wife, but she was not there and even as per the
evidence of Siyaram Yadav, the grand father of Santoshi Bai, he has stated that
after Teeja festival, when he went to drop her at her in-laws house, she was not
prepared to stay there and she started saying that she would not stay here, then
he advised her to stay there. Thereafter, with great difficulty she stayed at
her in-laws house for 15 days and came to Bemetara and she was residing with
her maternal grandmother, where her mother was also residing.

11. In view of the above, Shiv Kumar,husband of Santoshi Bai has been able to
discharge his primary burden that Santoshi Bai is residing separately without
any sufficient reason and Santoshi Bai has not been able to establish and prove
her case. Therefore, the finding of the learned 3rd Additional Sessions Judge
that there is sufficient reason for Santoshi Bai to live separately is perverse
and contrary to the evidence available on record, which cannot be sustained for
the reasons mentioned hereinbefore this order.

12. In the result, the revision of the petitioner is allowed and the impugned
order of the learned 3rd Additional Sessions Judge (FTC) Bemetara dated
18.10.2003 is set aside and that of the learned Judicial Magistrate First
Class, Bemetara,is restored.

JUDGE
15/02/2004

__________________________________________________________________________________________________________________________________________________________________

 No alimony for woman who desert husband

IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM …PETITIONER

VERSUS

MAHENDER KUMAR …RESPONDENT

Criminal Misc. No.M-24684 of 2008 (O&M)

Present: Mr.P.L. Goyal, Advocate, for the petitioner.

Mr. S.D. Bansal, Advocate, for the respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the same time, affirming the finding recorded by the trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only in getting maintenance allowance and taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the above, the present petition is dismissed being without any merit.

March 19 , 2009.

( MOHINDER PAL )