Very Important Point
A wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Sec­tion 125 Cr.P.C.

Judgment

S. Saghir Ahmad, J.—This Special Leave Petition was dismissed by us on 10.9.1999. We, hereinbelow, give our reasons for dismissing the Special Leave Petition.

2. The petitioner who is a member of the Indian Army was married with the respondent on 10th of May, 1990. Since the petitioner was posted away from his home, he left the respondent with his parents living jointly with his elder brother and his family at the family house in Village Kota, Police Station Galaoti, Tehsil and District Meerut. This, according to the petitioner, was not liked by the respondent who insisted that the petitioner should take leave from Army and stay with her at her parent’s house. It is said that in 1991, the respondent left the petitioner’s family house and went away to her father’s house. She refused to come back to the family house of the petitioner in spite of petitioner’s father and elder brother having gone to the respondent to persuade her to come back. On her refusal to come back, a notice was sent to the respondent on 5th of August, 1991 for resti­tution of conjugal rights but the respondent still did not come back to the petitioner’s family house in District Meerut and, therefore, in 1993, the petitioner filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage on the ground of derser­tion. The respondent in her defence raised various pleas including mal-treatment and cruelty as also a demand by the petitioner for a sum of Rs. 21,000/- and a scooter. It was pleaded by her that she was always prepared to come back to the petitioner but she was ill-treated by the petitioner’s parents who used to lock her up in, a room as the demand for a cash amount of Rs. 21,000/- and a scooter was not met by the respondent. The Family Court, Meerut, decreed the suit of the peti­tioner on 15th of July, 1995 and passed the decree of divorce on the ground of desertion by the respondent.

3. During the pendency of the suit for divorce, the respondent had filed an application for maintenance under Section 125 of the Code of Criminal Procedure on 28th of May, 1993 which was allowed by the Family Court, Meerut on 13th of March, 1997 in spite of the fact that the judgment by which a decree for divorce was passed in favour of the petitioner on the ground of respondent’s desertion was brought to the notice of the Family Court. The judgment passed by the Family Court, Meerut was challenged by the petitioner in a Revision filed in the High Court but the Revision was dismissed on 23rd of March, 1999. It was against this judgment that the present petition has been filed.

4. The principal contention raised by the learned counsel for the petitioner is that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of sub-section (4) of Section 125 Cr.P.C.

5. Sub-section (4) of Section 125 Cr.P.C. provides as under :—

“(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.”

Under this provision, a wife is not entitled to any maintenance Allow­ance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circum­stances contemplated by Sub-section (4) of Section 125 Cr.P.C. presup­pose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individu­ally, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in a