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2015 Supreme(Chh) 318
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Sanjay K. Agrawal, J.
Sita Bai - Applicant
Versus
Jethuram Sinha - Non-Applicant
Criminal Revision No. 978 of 2014, 155 of 2015
Decided On : 13-08-2015
Subject
Maintenance - MAINTENANCE OF DIVORCED SPOUSE
Act Referred
LIMITATION ACT : S.29
Headnote
Hindu Marriage Act, 1955 – Criminal Procedure Code - Section 125 - Retired as Assistant Grade-II from Electricity Department - Customary divorce – Condo nation of delay – Wife filed an application under Section 125 of Criminal Procedure Code pleading inter alia that her marriage was as per Hindu rites - She has further pleaded that she had earlier filed an application for maintenance which culminated into compromise in year and her husband is staying with one woman and he has three sons with - She has also pleaded that has deserted her and failed to make payment as per compromise entered into in year - Now she is unable to maintain herself and her husband is getting per month as pension having retired as Assistant Grade-II from Electricity Department - Therefore per month be granted to her as maintenance as she is unable to maintain herself – Held, Counsel for petitioner then submitted that once a decree for divorce was passed against respondent and marital relations between petitioner and respondent came to an end mutual rights duties and obligations should also come to an end - He pleaded that in this situation obligations of petitioner to maintenance a woman with whom all relations came to an end should also be treated to have come to an end - This plea as court have already indicated above cannot be accepted as a woman has two distinct rights for maintenance - As a wife she is entitled to maintenance unless she suffers from any of disabilities indicated in Section 125(4 - In another capacity namely as divorced woman she is again entitled to claim maintenance from person of whom she was once wife - A woman after divorce becomes a destitute - If she cannot maintain herself or remains unmarried man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her - Thus by virtue of Explanation (b) to Section 125 (1) of Criminal Procedure Code divorced wife is entitled for maintenance if she is unable to maintain herself and has not remarried - Family Court has clearly recorded a finding that applicant is wife of non-applicant who is unable to maintain herself whereas non-applicant is the person of sufficient means who is getting pension per month after retirement and enjoying with his second wife and issues out of second wife - Looking to cost of living standard of living age of the applicant - Wife and her medical needs amount per month granted to her by Family Court cannot be said to be reasonable amount to maintain herself - In view of aforesaid reasons and considering fact that non-applicant - Husband is getting pension of per month amount of maintenance is enhanced per month from date of this order – Civil revision dismissed
For the Applicant :Samir Singh, Advocate
For the Non-Applicant :Manoj Paranjpe, Advocate, Manoj Paranjpe, Advocate, Samir Singh, Advocate.
Sanjay K. Agrawal, J.
Since common question of law and fact is involved in both the revisions, they are being heard analogously and are being decided by this common order.
2. Smt. Sita Bai-wife, filed an application under Section 125 of the Cr.P.C. pleading inter alia that her marriage was solemnised with Jethuram Sinha in the year 1971 as per Hindu rites. She has further pleaded that she had earlier filed an application for maintenance which culminated into compromise in the year 1993 and her husband Jethuram is staying with one woman Neera Bai since 1980 and he has three sons with said Neera Bai. She has also pleaded that Jethuram has deserted her and failed to make payment as per the compromise entered into in the year 1993. Now, she is unable to maintain herself and her husband is getting Rs.28,000/- per month as pension, having retired as Assistant Grade-II from the Electricity Department. Therefore, Rs.15,000/- per month be granted to her as maintenance, as she is unable to maintain herself.
3. In the reply filed before the Family Court, the non-applicant herein-husband, submitted that he had already divorced applicant Sita Bai by way of customary divorce that is 'chhorchutti' and there is no relationship of husband and wife between the parties and that the applicant wife is already getting Rs.9 lakhs per annum from the landed property which she has and she is hale and healthy woman and case for partition is already pending consideration in the High Court, as such, she is not entitled for maintenance.
4. The Family Court by its impugned order has recorded a finding that applicant Sita Bai is wife of non-applicant Jethuram Sinha. The Family Court has further recorded a finding that the applicant is unable to maintain herself whereas, the non-applicant is the person having sufficient means to make payment and she is entitled for maintenance and that the non-applicant has refused to maintain her without any sufficient cause and as such, she is entitled for maintenance of Rs.1,500/- per month from the date of order.
5. Against the order granting maintenance, husband has preferred Criminal Revision No. 155/2015 for setting aside the order of maintenance whereas, wife has also preferred Criminal Revision No.978/2014 seeking enhancement of the amount of maintenance. Both the revisions have been clubbed together and are being heard analogously.
6. Mr. Samir Singh, learned counsel appearing on behalf of Smt. Sita Bai-wife, submits that undisputedly, husband of Sita Bai is getting pension of Rs.36,391/- per month and the maintenance awarded is only a meagre amount of Rs.1,500/- per month and, therefore, the amount of maintenance be enhanced suitably by modifying the order of the Family Court.
7. Mr. Manoj Paranjpe, learned counsel appearing on behalf of Jethuram Sinha-husband, would submit that wife of Jethuram is not at all entitled for maintenance, as she has already been divorced, marriage was solemnised between them in the year 1971, she is residing separately since 1975 and she is able to maintain herself since then. He would further submit that filing of application for maintenance on 10-2-2014, after an inordinate delay of 34 years, is hopelessly barred by limitation and is an unexplained delay as such, her application for grant of maintenance deserves to be dismissed. He would also submit that although there is no period of limitation prescribed for filing application under Section 125 of the Cr.P.C., but yet, filing of maintenance application after delay of 34 years would impliedly mean that she is able to maintain herself and there is no need to grant maintenance to her and, therefore, the impugned order be set aside, the revision filed by wife be dismissed and the revision filed by husband be allowed setting aside the order of the Family Court.
8. I have heard learned counsel for the parties and perused the record of the Family Court with utmost circumspection.
9. The question for consideration would be-
1. Whether in view
