A decree of divorce and finding of desertion by the matrimonial court can bar a spouse from claiming maintenance allowance under Sec.125 of the Code.

GURDEV SINGH, J.

1. This petition under Sec.482 of the Code of Criminal procedure (hereinafter referred to as the Code) has been filed by Gurmeet singh son of Sher Singh, petitioner, for quashing the orders dated 3.3.2009 (Annexure P-4) and 8.5.2009 (Annexure P-5) as well as for quashing of the petition under Sec.125 of the Code (Annexure P-2) filed against him by the respondents, since his marriage with respondent No.1 already stands dissolved by a decree of divorce on the ground of desertion and cruelty. According to the petitioner, his marriage was performed with loveleen Kaur-respondent No.1 on 16.12.1996 and from that wedlock, Gurleen singh was born in the year 1997 whereas, Jasleen Kaur -respondent No.2 was born on 20.1.2000. He was leading a normal life with respondent No.1. All of a sudden, on account of the interference of her mother, she left the house along with the other respondent on 2.5.2002 and thereafter never returned to the matrimonial home. She joined the Orchestra Band Party as a dancing and singing girl and started going with the band party for giving shows in Dubai. He and his family members objected to that conduct of the respondent and he filed a petition for restitution of the conjugal rights. He did not pursue that petition as she was not willing to join his company and filed a divorce petition on the ground of cruelty and desertion under Sec.13 of the Hindu marriage Act (hereinafter referred to as the Act ). Respondent No.1 appeared in the Court of Mrs. Sukhwinder Kaur, Additional District Judge, Patiala, in that divorce petition and also participated in the re-conciliation proceedings but did not agree to join the matrimonial home in spite of the persuasions made by the Presiding Officer. She moved an application under Sec.24 of the Act, in that petition, for the grant of maintenance. Thereafter, she stopped coming to the court and ultimately, ex-parte decree was passed against her on 16.2.2008 and the divorce was granted on the ground of desertion and cruelty. No appeal was filed against that judgment and decree and the same has attained finality. He also filed an application under Sec.6 of the Hindu Minority and guardianship Act, 1956, for the custody of the minor daughter whereas, respondent No.1 filed a similar application for the custody of the son. His application was dismissed whereas the application filed by respondent No.1 was allowed by the Guardian Judge. She filed an application under Sec.125 of the Code for grant of maintenance and interim maintenance in the court of JMIC, Patiala. As she had joined the Orchestra Band party as a dancing and singing girl,so she did not pursue that application. However, after the passing of the decree of divorce against her, the case was taken up for the grant of ad interim maintenance. He moved an application before the Judicial Magistrate for the dismissal of the application for maintenance allowance on the ground that the decree of divorce has already been passed against respondent No.1. That application was dismissed by the Judicial magistrate. He moved another application before the Magistrate that the remedy of respondent No.1 is only by way of application under Sec.25 of the Act. As a result of the passing of the decree the continuation of the proceedings in the application for maintenance allowance had become meaningless. However, that application was also dismissed. The orders are against the provisions of section 125 (4) of the Code.

2. Notice of the petition was given to the respondents, who came present and filed their reply. According to them, respondent No.1 was being maltreated by the petitioner, along with family members for having brought inadequate dowry articles and he was addicted to intoxicants. Respondent No.1 has not joined any such Orchestra Band party and that fact has been taken note of by the Civil Judge (Senior Division), while deciding the application under section 6 of the Hindu Minority and Guardianship Act, 1956. Re