Mr. L.N. Mittal, J. (Oral) - Crl. Misc. No. 12337 of 2013

Allowed as prayed for.

Main Case

1. Harpreet Singh has filed this petition under Section 482 of the Code of Criminal Procedure (in short, Cr.P.C.) assailing order dated 21.01.2013 Annexure P-4 passed by learned Additional Sessions Judge, Ludhiana.

2. Respondents Harmeet Kaur @ Vimmy and Sarabpreet Singh, who are wife and son respectively of the petitioner, filed petition under Section 125 Cr.P.C. against the petitioner claiming maintenance. Respondent No.2 was minor at that time, but has now attained the age of majority. Respondents also claimed interim maintenance alleging that they have no source of income whereas the petitioner was running a soap factory and was earning more than ‘20,000/- per month.

3. The petitioner in his reply alleged that application under Section 125 Cr.P.C. was not maintainable because customary divorce/compromise has taken place between petitioner and respondent No.1 vide writing dated 28.11.2007 Annexure P-2 and the respondents were living separately from the petitioner of their own free will.

4. Learned magistrate vide order dated 09.11.2009 Annexure P-3 dismissed the respondents’ application for interim maintenance. However, revision petition preferred against the said order by respondents herein has been allowed by learned Additional Sessions Judge vide impugned order Annexure P-4 and thereby petitioner herein has been directed to pay ‘2,000/- per month each as interim maintenance to the respondents herein w.e.f. the date of their application. However, respondent No.2 shall not be entitled to the interim maintenance since after the date of attaining the age of majority. Feeling aggrieved, petitioner has filed this petition to challenge order Annexure P-4.

5. I have heard learned counsel for the petitioner and perused the case file.

6. Counsel for the petitioner reiterated that in view of compromise Annexure P-2, respondent No.1 was residing separately with mutual consent and therefore, in view of Section 125 (4) Cr.P.C., the respondents are not entitled to maintenance including interim maintenance. It was also argued that petition filed by petitioner under Section 9 of the Hindu Marriage Act, 1955 (in short, the Act) has since been decreed ex parte against respondent No.1-wife vide judgment dated 26.08.2008 (Annexure P-1).

7. The aforesaid contentions do not help the petitioner at this stage. The alleged compromise, between petitioner and respondent No.1, has no bearing on the claim of respondent No.2 regarding maintenance from the petitioner. As regards respondent No.1, her claim was declined by the Magistrate on the ground that the petitioner has obtained ex parte judgment and decree under Section 9 of the Act for restitution of conjugal rights. However, no such plea was even taken by the petitioner in his reply. It was a new argument and respondent No.1 was taken by surprise by the same. Respondent No.1 had no opportunity to respond to the same. On the contrary, judgment Annexure P-1 obtained by the petitioner goes against his pleaded version of residing separately with mutual consent. The parties had allegedly effected compromise dated 28.11.2007 Annexure P-2 for residing separately by mutual consent. However, judgment Annexure P-1 for restitution of conjugal rights, was passed on 26.08.2008 i.e. nine months after the alleged compromise for residing separately by mutual consent. If petitioner and respondent No.1 had mutually decided to reside separately, it is not explained why the petitioner even thereafter continued to pursue his petition under Section 9 of the Act and obtained judgment Annexure P-1 for restitution of conjugal rights. It is correct that the petition under Section 9 of the Act, in which the said judgment was passed, had been instituted on 16.10.2007 i.e. before compromise Annexure P-2 was allegedly effected. However, for nine months after the compromise Annexure P-2 was allegedly effected, the petitioner con