A wife against whom a decree for restitution of conjugal rights has been passed is not entitled to claim maintenance under Section 125 CrPC if, in the restitution proceedings, a specific issue was framed and findings recorded on whether she refused to live with her husband without sufficient reason.

Sat Pal, J.

1. In this case, the respondent Santosh Kumari had filed an applica- tion under Section 125 of the Code of Criminal Procedure (in short the Code) against her husband Ravi Kumar, who is the petitioner in this case, claiming maintenance. The Sub Divisional Judicial Magistrate, Pathankot, vide his order dated 12th July, 1990, dismissed the application of Santosh Kumari holding that she had failed to prove any sufficient reasons for residing separately from her husband and as such, she was not entitled to claim maintenance in view of the provisions of Section 125(4) of the Code.

2. Aggrieved by the aforesad order dated 12.7.1990, the respondent-wife filed a revision petition before the Sessions Court. During the pendency of this revision petition, the petition filed by the husband under Section 9 of the Hindu Marriage Act was allowed by the Additional District Judge, Gurdaspur, vide his judgment dated 17.8.1990. The revision petition filed by the wife against the order dated 12.7.1990 of the Sub Divisional Judicial Magistrate, Pathankot, was however allowed by the learned Additional Sessions Judge, Gurdaspur, vide his judgment dated 17.9.1991. By this judgment the learned Additional Sessions Judge held that Santosh Kumari had left her matrimonial home due to mal-treatment meted out to her by the respondent Ravi Kumar and she had not left his company without any reasonable cause. Consequently, the learned Additional Sessions Judge granted maintenance to the respondent-wife at the rate of Rs. 400/- per month from the date of the order passed by the learned Trial Court.

3. In this petition, the husband Ravi Kumar has challenged the judgment dated 17.9.1991 passed by the learned Additional Sessions Judge, Gurdaspur. This petition came up for hearing before a learned Single Judge of this Court on 10th January, 1994. The learned Single Judge found that there was a conflict of authorities of different High Courts on the point as to whether the wife against whom decree for restitution of conjugal rights has been passed, is entitled to claim maintenance under Section 125 of the Code. In view of this, the learned Single Judge directed that the matter be placed before Honble the Chief Justice for constituting a larger Bench to decide this question. This is how this case has come up before this Bench to decide the following question of law :

"Whether the wife against whom decree for restitution of conjugal rights has been passed, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure ?"

4. Mr. Chaudhary, learned Counsel appearing on behalf of the petitioner submitted that the learned Trial Court in his order dated 12th July, 1990, had given a clear finding that the respondent-wife had failed to prove any sufficient reason for residing separately from the petitioner-husband and in view of the provisions contained in Section 125(4) of the Code, the respondent was not entitled to receive maintenance allowance from the petitioner. He further submitted that during the pendency of the revision petition filed by the respondent-wife against the aforesaid order dated 12.7.1990, the petition filed by the husband under Section 9 of the Hindu Marriage Act has been allowed by the learned Additional District Judge, Gurdaspur, vide his order dated 17.8.1991. He drew our attention to this judgment and submitted that from this judgment it was clear that on the basis of the pleadings in that case, one of the issues framed was :

"Whether the respondent withdrew from the society of the petitioner without reasonable and sufficient cause ?"

5. After the parties led evidence on this issue, the learned Additional District Judge came to the conclusion that the respondent-wife was guilty of deserting the petitioner without any sufficient and reasonable cause. Consequently, he allowed the petition of the husband under Section 9 of the Hindu Marriage Act. Mr. Chaudhary, therefore, contended that since the respondent-wife