A husband's second marriage constitutes legal desertion, entitling the wife to maintenance, even if the husband has the desire to be with his wife without change of circumstance.

JUDGMENT :

S.C. Mohapatra, J. - Husband is the Petitioner in this revision against an order of maintenance granted u/s 125, Criminal Procedure, Code.

2. A few days after the marriage, opposite party left the marital home while she was conceiving and gave birth to a child in her paternal home. Thereafter, she filed suit for maintenance alleging desertion by her husband. Suit was dismissed on the finding that there was no desertion. After disposal of the suit, alleging that husband has married for the second time, an application u/s 125, Code of Criminal Procedure was filed. Trial Court having directed husband to pay maintenance at Rs. 200/- per month, this revision has been riled.

3. Mr. Rath challenged the impugned order asserting that

(i) Civil Court finding that there was no desertion is final and binding on the Criminal Court;

(ii) Second marriage of Petitioner has not been proved by opposite party; and

(iii) Trial Court has not taken into consideration the income of Petitioner as well as income of wife for which the quantum of maintenance is arbitrary.

4. There can be no doubt that a wife is entitled to be maintained by her husband and when the husband having sufficient means neglects or refuses to maintain his wife or his wife is unable to maintain herself, monthly allowance is to be directed to be paid to her. Therefore, while considering an application for maintenance made by a lady against a gentleman claiming herself to be the wife, trial Court is to consider whether she is the wife if the relationship is disputed. Thereafter, trial Court is to consider whether the wife is unable to maintain herself and whether the husband having sufficient means neglects or refuses to maintain the wife.

5. In this case there is no dispute that Petitioner married opposite party. There is also no dispute that opposite party is not residing with him and they are remaining separate although both of them belong to the same village. Each blame the other for their separation. Dispute went to a competent Court where rightly or wrongly a finding has been given that Petitioner has not deserted her. Such a decision is binding on the Court in a proceeding u/s 125, Code of Criminal Procedure. If after the decision of the Civil Court which has become final on the then existing circumstances, wife would have filed an application u/s 125, Code of Criminal Procedure, such prayer would have been refused and Court would have held that the finding of separation is not on account of desertion by the husband is binding on it.

6. Wife has filed the application on the changed circumstance that husband has married again. When wife has gone out of her own accord, she can also come back because husband has not thrown her out. By second marriage husband has closed the door for the wife to come back. Even if there would be no second marriage keeping a woman in the house as concubine has the same effect. Creating circumstances which would not be congenial to a wife to remain with her husband is a cruelty and is also legal desertion even if husband has the desire to be with his wife without change of circumstance. Thus, on proof of second marriage of keeping a concubine, wife is a entitled to separate residence and maintenance. Prior Civil Court decree when there was no second marriage or keeping a concubine would not have any effect.

7. Proceeding u/s 125, Code of Criminal Procedure is summary in nature. On the materials Court is to come to the conclusion whether there is second marriage. Basing on oral evidence and birth certificate of a female child where Petitioner has been recorded to be the father, trial Court has come to the conclusion that Petitioner has married again. No material has been brought on record by Petitioner that there is another person of the same name in the village or that the registration has been made wrongly otherwise. In such circumstance, finding of trial Court cannot be said to be unreasonable to be interfered with in a revision. Hence, it has