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1995 Supreme(P&H) 611
PUNJAB & HARYANA HIGH COURT
Dr. Sarojnei Saksena, J.
Jasbir Singh
Versus
Harjinder Kaur
Criminal Revision No. 82 of 1995,
Decided On : MAY 15, 1995
The finding of the Civil Court on desertion was binding on the Criminal Court, and under Section 125, Code of Criminal Procedure, the respondent could not claim maintenance if she refused to live with her husband without sufficient reason.
Headnote:
Maintenance - Divorce and Desertion - The court found that the respondent-wife had deserted the petitioner-husband, and as a result, the divorce was granted in favor of the petitioner. The finding of the Civil Court on desertion was binding on the Criminal Court, and under Section 125 of the Code of Criminal Procedure, the respondent could not claim maintenance if she refused to live with her husband without sufficient reason. The court also considered the fact that the respondent had remarried, further supporting the decision to disallow the maintenance claim.
Fact of the Case:
The parties were married in 1981. The husband filed a divorce petition on the ground of desertion, which was decreed in his favor. The respondent then filed a petition under Section 125, Code of Criminal Procedure, seeking maintenance, which was initially rejected by the trial Magistrate but later allowed by the Lower Revisional Court.
Finding of the Court:
The court found that the respondent-wife had deserted the petitioner-husband, and the finding of the Civil Court on desertion was binding on the Criminal Court. It was also noted that under Section 125, Code of Criminal Procedure, the respondent could not claim maintenance if she refused to live with her husband without sufficient reason. Additionally, the fact that the respondent had remarried further supported the decision to disallow the maintenance claim. As a result, the revision was allowed, the Lower Revisional Court's order was set aside, and that of the trial Magistrate was restored.
Issues: The main issue was whether the respondent was entitled to claim maintenance from the petitioner despite the finding of desertion in the divorce petition and her remarriage.
Ratio Decidendi: The finding of the Civil Court on desertion was binding on the Criminal Court, and under Section 125, Code of Criminal Procedure, the respondent could not claim maintenance if she refused to live with her husband without sufficient reason. The fact of the respondent's remarriage further supported the decision to disallow the maintenance claim.
Final Decision: The revision was allowed, the Lower Revisional Court's order was set aside, and that of the trial Magistrate was restored.
Dr. Sarojnei Saksena, J.
1. This is a revision challenging the order passed in Criminal Revision No. 14 of 1989 by Shri J.S. Pamma, Additional Sessions Judge, Faridkot, whereby petition filed under Section 125, Code of Criminal Procedure rejected by the trial Magistrate is allowed and maintenance is granted from the date of the petition.
2. Briefly stated facts of the case are that the parties were married in the year 1981. The husband-petitioner filed a divorce petition on 19.8.1985 on the ground of desertion etc. The respondent contested the petition which was decreed on 2.9.1987. On 27.10.1987, the respondent filed a petition under Section 125, Code of Criminal Procedure. The petitioner contested the petition. Learned Magistrate dismissed the petition vide his order dated 18.2.1989. The respondent filed Criminal Revision No. 14 of 1989, wherein her petition filed under Section 125, Code of Criminal Procedure, was allowed.
3. Petitioners learned counsel contended that in the divorce petition, divorce was granted in favour of the petitioner on the ground of desertion. Respondent filed appeal against that judgment bearing F.A.O. No. 189-M of 1987, which was disposed of on 9th March, 1995 as withdrawn. Thus, it is apparent that she accepts the finding of the matrimonial Court that she deserted the petitioner. This finding is binding on the Criminal Court. In view of Section 125, Code of Criminal Procedure, the respondent is not entitled to claim maintenance. It is further submitted that now she has remarried on 12.12.1993. On this count also, she is not entitled to claim any maintenance from the petitioner.
4. The respondents learned counsel submitted that both the parties have re-married and are living peacefully. Therefore, the respondent has withdrawn her appeal filed against the divorce decree. She is not interested in claiming maintenance from the petitioner.
5. Admittedly, in the divorce petition, a finding is recorded that the respondent-wife has deserted the petitioner-husband and on this ground divorce was granted in petitioners favour. Respondent preferred an appeal against that decree but later on withdrew it. This finding of the Civil Court is binding on the Criminal Court. The Lower Revisional Court has failed to consider this legal aspect. Further, under Section 125, Code of Criminal Procedure, no wife can claim maintenance if without any sufficient reason, she refuses to live with her husband. On both these counts, I find that the respondent could not have claimed maintenance from the petitioner. Lower Revisional Court could not have granted maintenance from the date of the petition. Further, she has remarried on 12.12.1993.
6. In view of these facts, the revision is allowed. The Lower Revisional Courts order is set aside and that of the trial Magistrate is restored.
