A wife who has been granted a decree for judicial separation is entitled to maintenance under section 125 of the Criminal Procedure Code, if she has not deserted her husband without sufficient cause.

Headnote:
MAINTENANCE - SECTION 125 OF CRIMINAL PROCEDURE CODE - SECTION 13 OF THE HINDU MARRIAGE ACT - JUDICIAL SEPARATION - WIFE'S RIGHT TO MAINTENANCE - DESERTION - SUFFICIENT CAUSE - INTERPRETATION.
Fact of the Case:

The wife filed an application for maintenance under section 125 of the Criminal Procedure Code against her husband. During the pendency of the maintenance application, the husband filed a petition for divorce under section 13 of the Hindu Marriage Act on the ground of cruelty and desertion. The Civil Court granted a decree for judicial separation. The Magistrate passed an order for maintenance in favor of the wife and son. The husband challenged the order in revision. The Sessions Judge set aside the order of maintenance for the wife, holding that she was not entitled to maintenance since she had deserted her husband.
Finding of the Court:

The High Court held that the wife was entitled to maintenance under section 125 of the Criminal Procedure Code, even though a decree for judicial separation had been passed against her. The Court found that the wife had not deserted her husband without sufficient cause, as she had been subjected to cruelty by him. The Court also reduced the quantum of maintenance awarded to the wife from Rs. 250/- per month to Rs. 150/- per month, considering the husband's limited income.
Issues: 1. Whether a wife who has been granted a decree for judicial separation is entitled to maintenance under section 125 of the Criminal Procedure Code? 2. Whether the wife had deserted her husband without sufficient cause?
Ratio Decidendi: 1. A wife who has been granted a decree for judicial separation is entitled to maintenance under section 125 of the Criminal Procedure Code, if she has not deserted her husband without sufficient cause. 2. Desertion, as defined in the Explanation to sub-section (1) of section 13 of the Hindu Marriage Act, means the abandonment of the other spouse by one spouse without reasonable cause and without the consent or against the wish of such other spouse. 3. In the present case, the wife had not deserted her husband without sufficient cause, as she had been subjected to cruelty by him.
Final Decision: The High Court allowed the revision application, set aside the order of the Sessions Judge, and restored the order of the Magistrate granting maintenance to the wife and son. The quantum of maintenance awarded to the wife was reduced from Rs. 250/- per month to Rs. 150/- per month.

JUDGMENT - B.V. CHAVAN, J.:---The applicants who are the wife and son of the non-applicant No. 1 Subhash, have challenged the order passed by the Additional Sessions Judge in Criminal Revision No. 211 of 1990 setting aside the order of maintenance passed in favour of applicant No. 1—the wife by the Judicial Magistrate, First Class, Amravati, Court No. 3.

2. The undisputed position is that, the applicant No. 1 was married to non-applicant No. 1 some time in the year 1983. They lived happily for some time. But from February 1985, applicant No. 1 wife went to reside in the house of her maternal uncle and since then she did not return to the house of non-applicant No. 1. While this was the position, applicants filed an application under section 125 of Criminal Procedure Code for maintenance on 20-1-1989. During the pendency of the said maintenance application non-applicant No. 1 filed Hindu Marriage Petition No. 78 of 1987 for divorce under section 13 of the Hindu Marriage Act on the ground of cruelty and desertion. While the maintenance application continued to remain pending, Hindu Marriage Petition No. 78 of 1987 came to be decided on 14-12-1989. The learned Joint Civil Judge, Senior Division, Amravati passed a decree for judicial separation. Thereafter on 24-7-1990, Judicial Magistrate First Class, Amravati passed an order for maintenance in favour of applicants awarding them maintenance of Rs. 250/- and Rs. 150/- respectively per month. Non-applicant No. 1 challenged this order in Criminal Revision Application No. 211 of 1990. The learned Sessions Judge by his order dated 24-4-1992 allowed the said revision application so far as grant of maintenance to applicant No. 1 is concerned and set it aside mainly on the ground that applicant No. 1 who was held to have deserted her husband in the matrimonial proceedings cannot be held to be entitled to get maintenance under section 125 of Criminal Procedure Code, since the finding recorded by the Civil Court was binding on the Criminal Court. He, however, confirmed the order of maintenance passed in favour of applicant No. 2.

3. Mrs. Sirpurkar, appearing on behalf of the applicants urged that merely passing of a decree for judicial separation was not enough to disentitle the applicant No. 1 for grant of maintenance and in an enquiry under section 125 of Criminal Procedure Code, the Court will have to see the ground on which the decree for judicial separation was passed and whether it can be said that applicant No. 1 was not residing with the non-applicant No. 1 without sufficient cause. She relied upon (Angrez Kzaur v. Baldev Singh)1, A.I.R. 1980 P. H. 171, wherein it is held that decree for judicial separation under section 13-A of the Hindu Marriage Act, 1955 would not affect maintenance order granted to the wife earlier under section 488 of Criminal Procedure Code. She also relied upon (Nathu Ram v. Atar Kunwar)2, A.I.R. 1969 Allahabad 191, wherein it is held that a decree for judicial separation under section 10 of the Hindu Marriage Act does not operate as bar for claiming maintenance under section 488 of the old Criminal Procedure Code. Relying on these two authorities, it was urged that in the present case if the judgment passed in Hindu Marriage Petition granting a decree for judicial separation is read as a whole, it will be clear that the learned Civil Judge has recorded a finding that it was not the husband who was given cruel treatment by the wife, but it was the wife who was given cruel treatment by the husband and that is why the wife had gone to her uncle and was living separately continuously from the year 1985. She urged that if these facts are taken into consideration merely because there was a factum of separation proved, the applicant No. 1 cannot be denied her right of maintenance if she proved that she was living separate from non-applic

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