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____________________________________________________________
“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.
__________________________________________________________________________________________________________________________________
“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.
__________________________________________________________________________________________________________________________________________________________________
“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 )
