Point of law: Finding recorded by the family Court that wife is staying separately from the husband without any sufficient cause is erroneous.

ORDER :

Heard the learned counsel for petitioners. Notice to respondent has been held sufficient and there is no representation on behalf of the respondent.

2. Although the appeal is listed for admission, with the consent of the learned counsel, the matter is heard finally on its merits.

3. The relevant facts necessary for consideration of the present petition are that the marriage between the petitioner No.1 and the respondent was solemnized on 23.11.2009 and the petitioners No.2 and 3 are the children from the said wedlock. The petitioners instituted a petition under Section 125 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) seeking maintenance from the respondent. The said proceedings was contested by the respondent. The family Court by order dated 14.11.2018 dismissed the petition filed by the petitioners holding, inter alia, that PW-1 had not placed material on record to demonstrate that she was willing to join the respondent in the matrimonial home; and that the petitioners had not placed any material to demonstrate that the respondent had willfully neglected to maintain the petitioners.

4. Learned counsel for petitioners contends that the reasoning adopted by the family Court is erroneous and contrary to the statutory stipulation as provided under Section 125 of the Cr.P.C.

5. I have considered the submission made by the learned counsel and perused the material on record.

6. Section 125 of Cr.P.C. reads as follows :

125. Order for maintenance of wives, children and parents.— (1) If any person having sufficient means neglects or refuses to maintain—

(a) xxx

(b) xxx

(c) xxx

(d) xxx a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

(Emphasis supplied)

7. It is clear from a plain reading of Section 125 of the Cr.P.C. that a person is entitled to initiate proceedings if they demonstrate any of the aspects stipulated therein i.e. neglects or refusal to maintain.

8. The Family Court upon a detailed appreciation of the oral and documentary evidence on record, has dismissed the petition filed by the petitioner holding inter alia that no attempt was made by the petitioners to join the company of the respondent despite the respondent having issued notice at Ex.P.5. The Family Court also disbelieved the testimony of P.W.2 the father of the petitioner No.1 with regard to alleged ill treatment by the respondent. The testimony of P.W.3 i.e., a witness examined on behalf of the petitioner No.1 regarding ill treatment has been disbelieved on the ground that the same is hearsay. The Family Court has further recorded a categorical finding that the petitioner No.1 herself has voluntarily left the company of the respondent and there are no serious grounds or reasons for her to withdraw his company and in view of the same, the petitioner did not prove the material requirement of Section 125 of Cr.P.C. regarding alleged willful neglect by the respondent. The Family Court accepted the contention of the respondent regarding his responsibility and obligation to maintain the petitioners if they would reside along with him. Hence, the Family Court has recorded a categorical finding that, the petitioner No.1 has voluntarily deserted the respondent and that they have not proved that the respondent has willfully neglected them.

9. It is clear from a clean reading of Section 125 of Cr.P.C., that the proceedings are summary in nature and it is sufficient if negligence or refusal on the part of the husband in providing maintenance to the wife is demonstrated. The proceedings do not contemplate the proof regarding sufficient cause for living separately.

10. In the present case, the matrimonial relationship between the petitioner and the respondent No.1 is undisputed as also