Criminal Revision No.1476 of 2007

11th February, 2009

Cases Cited:
Balakram Vs. Smt. Durgabai, 2007(1) MPWN 10 [Para PARA6,14]
Chaturbhuj Vs. Sita Bai, 2008 ALL MR (Cri) 860 (S.C.)=2008(1) CCSC 384 (SC) [Para 7,15]
Bhagwan Datt Vs. Smt. Kamla Devi, AIR 1975 SC 83 [Para PARA16]

JUDGMENT

-This criminal revision under Sections 397/401 of the Code of Criminal Procedure read with Section 19(4) of the Family Court Act has been preferred being aggrieved by the impugned order dated 21.05.2007 passed by Family Court, Jabalpur in M.J.C. No.250/04 whereby the application filed by respondent under Section 125 of Cr.P.C. has been allowed and directing the petitioner to pay maintenance to respondent and her daughter at the rate of Rs.800/- per month to each respectively.

2. The facts of the case in brief are that respondent/applicant (herein after referred as respondent) filed an application under Section 125 of Cr.P.C. against the petitioner/non-applicant (herein after referred as petitioner) to the effect that she is the wedded wife of petitioner. Their marriage was performed on 24.04.1996. They lived happily for two years and two daughters were born out of their wedlock but later on petitioners behavior changed. He started harassing her. On 16.01.2004 he gave her beating and drived her out of the house. Since then she is residing in her parents house alongwith her minor daughter. She has no means to maintain herself. On the contrary, petitioner is a teacher and has means to support. It was also stated that the petitioner has illicit relations with Suhagabai and, he has neglected her. Since the marital relations are still subsisting hence, she is entitled to get maintenance and also for her minor daughter.

3. The petitioner submitted the written reply in detail wherein he denied most of the averments of the petition mainly contending that respondent is voluntarily living separately. He has not subjected her to cruelty and not driven out from his house. He is ready to keep with him. He has also filed the petition under Section 9 of Hindu Marriage Act for restitution of the conjugal rights wherein the decree has been passed. In spite of she did not turn up to live with him, therefore, in such circumstances, she is not entitled to get any maintenance.

4. Both the parties adduced the evidence in support of their contention. Urmila Bai (AW-1) and Pusiya Bai (AW-2) have been examined on behalf of the respondent whereas Rewalal Sarote (NAW-1) and Ayodhya Singh (NAW-2) on behalf of petitioner. After appreciating the evidence, Family Court allowed the application filed by the respondent and directed the petitioner to pay maintenance at the rate of Rs.800/- per month to respondent and to her minor daughter each respectively. Being aggrieved by the impugned order the instant revision has been preferred on the grounds mentioned in the memo of appeal.

5. Learned counsel for the petitioner at the very out set submitted that the petitioner has no objection in granting maintenance to minor daughter Ku. Anjali, but he has challenged the same granted to the respondent.

6. Learned counsel for the petitioner submitted that the petitioner wants to keep respondent with him but she is not residing with him in spite of the decree of restitution of conjugal rights passed by the competent court. She has deserted him without any reasonable cause. In such circumstances, she is not entitled for any maintenance. He has placed the reliance on the decision of this Court rendered in the case of Balakram Vs. Smt. Durgabai and others, 2007(1) MPWN 10. Learned counsel for the petitioner further submitted that there is no evidence that petitioner subjected cruelty to the respondent hence it was not proved that respondent was harassed or beaten by the petitioner. The court below has not given the finding as to what is effect of the decree passed in Hindu Marriage Act Case No.42A/04 passed by 2nd Additional District Judge, Mandla on 19.07.2006 (Ex.D-1). The learned counsel for the petitioner further submitted that the court below has committed an illegality in awarding the maintenance allowance to the respondent.

7. On the contrary, Ms. C. P. Golandaz, Advocate appearing on behalf of the respondent supported the impugned order mainly contending that respondent is living separately from petitioner on account of his misbehavior and mal-treatment. He has made baseless allegation regarding her character by alleging that she has illicit relations with Vijay. This is the mental cruelty to her. Since the petitioner is causing harassment, giving beating, therefore, she is apprehending danger in residing with him. Learned counsel for the respondent has placed the reliance on the decision of Chaturbhuj Vs. Sita Bai, 2008(1) CCSC 384 (SC) : [2008 ALL MR (Cri) 860 (S.C.)]. Learned counsel for the respondent further submitted that the court below has not committed any illegality in directing the petitioner to pay maintenance allowance to the respondent. The order being proper does not call for any interference.

8. The main point for consideration in this revision is that whether the court below has committed any illegality in allowing the application filed by the respondent under Section 125 of Cr.P.C?

9. It is not disputed that the respondent and petitioner married on 24.04.1996 and two daughters were born out of their wedlock. One is residing with petitioner and another with respondent. Their life was very peaceful up to two years but subsequently the relations became tense. According to respondent, petitioner started misbehaving and causing her Marpeet. On 16.01.2004 she was beaten and drived out of the house and since then she is residing with her parents. The evidence of Urmila Bai (AW-1) and Pusiya Bai (AW-2) has been given to the effect. On the contrary, the petitioner has denied such facts and has given the evidence that she has voluntarily left his house and living separately. The evidence of Rewalal Sarote (NW-1) and Ayodhya Singh (NW-2) has been adduced to that effect. Thus, it is evident that petitioner and respondent both are residing separately with one minor daughter each.

10. The contention of learned counsel of the petitioner is that the petitioner has offered to live together but she has not accepted and living separately, therefore, no maintenance can be provided to her. Learned counsel has drawn my attention on the provisions contained in IInd Proviso of Section 125(3) and also to the provisions contained in Section 125 (4) of Cr.P.C.

IInd proviso of Section 125(3) reads thus:-

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Section 125(4) reads as follows:-

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.

11. In the present case it is evident that respondent is not living with her husband. She is not ready to live with him. She has also not complied with the decree (Ex.D-2) passed in matrimonial case No.42A/04 by IInd Additional District Judge, Mandla.

12. The contention of the learned counsel of respondent is that petitioner has mal treated her, caused her Marpeet. She was driven out of her matrimonial house on 16.01.2004. Since then he never cared her. He has never returned to take her back. He has made the false allegation that she has illicit relations with Vijay. He does not take food prepared by her. He has illicit relation with another woman Suhagabai. Her life is in danger if she lives with him. These are the grounds why she does not want to live with him. Learned counsel of respondent has drawn my attention to the explanation to Section 125(3) of Cr.P.C.

Explanation of Section 125(3) reads thus:-

If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him.

13. Since it has come on record that petitioner has illicit relation with another woman, hence this ground alone is sufficient to refuse to live with him. Apart from it there is ground of cruelty also. The allegations regarding her character constitute mental cruelty to her. That may be an additional ground to refuse to live with him. Prima facie these are the just grounds to refuse respondent to live with her husband.

14. No doubt petitioner has obtained ex parte decree of restitution of conjugal rights against the respondent and as per referred case Balakram (Supra) the wife not joining company of her husband in spite of such decree, she is not entitled for maintenance but the referred case is distinguishable on the facts of this case. Apart from it even the divorced wife is entitled to receive maintenance till she does not remarry. It is abundantly clear that marriage in between the parties is still subsisting hence she is entitled for maintenance.

15. In the case of Chaturbhuj [2008 ALL MR (Cri) 860 (S.C.)] (Supra) the Apex Court has held thus:-

"The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instance case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125, Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and others, AIR 1978 SC 1807 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the "Constitution"). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya Vs. State of Gujarat and others, 2005(2) Supreme 503 : 2005 (1) CCSC 480".

16. In the case of Bhagwan Datt Vs. Smt. Kamla Devi, AIR 1975 SC 83, it was observed that the wife should be in a position to maintain standard of living, which is neither luxurious nor penurious, but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125, Cr.P.C.

17. From the evidence available on record it is manifestly clear that respondent is not in a position to maintain herself. On the contrary, petitioner is a teacher in govt. school and is earning salary. He has sufficient means to provide the maintenance. The awarded amount is not excessive. There is no illegality, impropriety or perversity in the impugned order hence cannot be set aside. The revision is devoid of substance and deserves to be dismissed.

18. Consequently, this revision fails and is dismissed accordingly.

Revision dismissed.