IMPORTANT POINT
A wife is entitled to refuse to return to the matrimonial home and yet claim matrimonial under Section 125 of the Criminal Procedure Code, if the husband is living in adultery and otherwise tortures the wife.

Headnote:(I) Criminal Procedure Code, 1973 Section 125 - Wife's petition for maintenance under-Husband living in adultery – Also tortured wife - Wife left matrimonial home Refused to return – Whether such wife is entitled to maintenance under Section 125 of the Criminal Procedure Code. (Yes)
       Held: From the facts and circumstances of this case, it becomes absolutely clear that the husband had decided to abandon his wife long ago and that he was bent on not accepting her under any circumstance. His behaviour althroughout has been ungentlemanly. He does not give an impression of being sincere or reliable. Time and again he assured this Court of certain behaviour and subsequently acted quite contrary to it. It is understandable that he is in a difficult situation, as there is an allegation that he has another woman in the house and has begotten an issue by her. Accepting his wife in the same house would mean perpetual quarrels and possibly some violence which may result in injury to or even the death of one or other. But this predicament is of his own creation. Earlier there was an allegation regarding his association with a nurse called Miss Iyoti. Now it is Miss Daksha Kansara living with him. Be that as it may, the husband has a liability to maintain his lawfully married wife and children under Section 125 of Criminal Procedure Code. The husband cannot escape that liability to maintain by alleging that he. was harassed by his wife and by resorting to the subterfuge of filing Hindu Marriage Petition for restitution of conjugal rights in a Civil Court. In the facts and circumstances of the case, it is abundently clear that the petition for restitution of conjugal rights was filed with ulterior motive to avoid the liability to pay maintenance to the wife under Section 125 of Criminal Procedure Code. Looking to the record of the husband, it is quite possible that to avoid paying maintenance to the wife under this order, he may agree to take the wife for some time and torture or drive her out later. But the wife would be fully justified in refusing to live with the husband in view of the allegations that he is living with another woman and has an issue by her. In law, the position is absolutely clear that a wife can refuse to live with the husband and yet claim maintenance under Section 125 of Criminal Procedure Code, if he has remarried or is living in adultery with another woman. A wife has a right to exclusive association of her husband undefiled and unpoluted by any other woman. (Para 7)
       (i) Criminal Procedure Code, 1973 - Section 125 -- Wife's petition for maintenlmce - Trial Court granted 500/. p.m. to wife and 200/-. p.m. for each of children - Husband's net income 3720/-. p.m. as per pay order -- Wife's maintenance cannot he increased An view of maximum limit of 500/- under Section 125 - Children's maintenance raised to Rs. 300/-. each in view of education expences of children. (Para 8)
       (ii) Criminal Procedure Code, 1973 - Section 125 - Present ceiling of Rs.500/. under - Whether legislature should raise it? (Yes, in view of rising prices & higher court of living). (Para 8)
       (iii) Criminal Procedure Code, 1973 - Section 125 -- Hindu Marrige Act, 1955 -Section 24 - Respondent husband paying 400/. p.m. as maintenance under Hindu Marriage petition - Whether be taken into account while computing arrears of maintenance under Section 125 of the Criminal Procedure Code? (Yes). (Para 10)

JUDGMENT

Qureshi, J.- The petitioner herein is the lawfully wedded wife of the respondent No. 1. She has challenged the judgment and order dated 7-12-1985 passed by the Metropolitan Magistrate court No.3, Ahmedabad, rejecting her application for maintenance under Section 125 of the Criminal Procedure Code. She has also claimed in this Revision Application, the enhancement of the amount of maintenance of Rs. 200/- p.m. awarded to each of the two children of the couple.

2. The Trial Court rejected the petitioner wife's application for maintenance on the ground that she did not prove that the respondent-husband had failed and neglected to maintain her. In coming to the said conclusion, the Trial Court had taken into consideration the correspondence between the parties, especially Exts. 4, 5, 6, 7,17, 18 and 19. From the aforesaid letters, the Trial Court drew the conclusion that there was no evidence of beating or torture or harassment by the husband to the wife. It also inferred that the wife left the husband voluntarily. The Court further held that the civil Suit filed by the husband showed that he was ready and willing to keep the wife but she wilfully refused to live with him.

3. On going through the aforesaid exhibits and other documents on record, this Court has come to the conclusion that the Trial Court was not justified in holding that the respondent-husband had not failed or neglected to maintain the petitioner wife and consequently rejecting' her application for maintenance. The reasoning given by the Trial Court that the letters Exts. 5, 6 and 7 written by the wife, do not show that she was being tortured or harassed, is not correct because normally an average Indian wife puts up with a lot of mental and physical torture and deliberately does not disclose many things to her parents so that her matrimony may not be endangered. In this case, there is evidence to show that there was harassment by the husband. The petitioner-wife in her letter Ext. 4 dated 29-3-1984 had stated that even after her mother and brother had come and gone, the harassment continued. She has also referred to another woman named Jyoti, who used to come to their house often. In the said letter, she has stated that both her husband as well as the other woman Jyoti have been harassing her and beating her up. She has also stated that she was threatened to be killed by showing her a knife. It seems that the cause of quarrel is the other woman called Jyoti. The respondent-husband is a qualified Doctor in me E.S.I. Dispensary at Surat. The other woman Jyoti is said to be a nurse working in that dispensary. In her deposition, the petitioner-wife had stated that she had gone with her brother to her father's house on 29-3-1983. But thereafter on account of the persuasion by her parents, she went back to her husband's place at Surat. According to her, again she was beaten up and that while she was at her husband's place she had second pregnancy. These facts, when objectively seen, would clearly indicate that there was tussle and tension in the matrimonial home partly because of the possible involvement of another woman. Be that as it may, the fact is that it appears quite unfair and unjust to hold that the wife was not neglected by the husband. The petitioner-wife went to her parent's place for second delivery on 21-6-1984. The delivery took place on 29-9-1984. Only twelve days before the delivery, the respondent-husband sent a legal notice dated 17-9-1984 Ext. 8, through his Advocate Mr. C.J. Khatiwala, making serious allegations regarding her taking away gold and silver jewellery, National Savings Certificate and valuable clothes in two suit-cases. It was further alleged that she had taken away all the valuables, as a result of conspiracy between herself, her parents and brother. According to him, it was done with evil intentions. It was further alleged that the wife had given threats to the husband and committed attrocities on him with a view to extract m

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IMPORTANT POINTA wife is entitled to refuse to return to the matrimonial home and yet claim matrimonial under Section 125 of the Criminal Procedure Code, if the husband is living in adultery and otherwise tortures the wife.

IMPORTANT POINT
A wife is entitled to refuse to return to the matrimonial home and yet claim matrimonial under Section 125 of the Criminal Procedure Code, if the husband is living in adultery and otherwise tortures the wife.