Non-compliance with a decree for restitution of conjugal rights can affect entitlement to maintenance under Section 125(4) of the Cr.P.C.

Judgement Key Points

Prafulla C. Pant, J.:-

This revision is directed against the order dated 30.06.2003, passed by Judge, Family Court, Haridwar, in Case No. 120 of 2002, whereby said court has directed the revisionist to pay maintenance at the rate of Rs. 500/- per month to his wife (respondent No. 2).

2. Heard learned counsel for the re­visionist. No one turned up on behalf of respondent No. 2.

3. Brief facts of the case are that re­visionist got married to respondent No. 2 in the year 1996, according to Muslim rites. After their marriage for some time they lived together. Thereafter, their re­lations started souring. Respondent No. 2 Munni @ Munazra filed an application under Section 125 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), be­fore the Judge, Family Court, Haridwar, claiming maintenance at the rate of Rs. 500/- per month. She pleaded that she was harassed for non-fulfillment of de­mand of dowry by her husband and in-laws. She further pleaded that she is un­able to maintain herself, while her hus­band is earning Rs. 15,000/- per month. The revisionist, who was opposite party in the case filed by his wife, contested the case and filed his written statement. He admitted that he got married to respond­ent No. 2. However, he denied that any demand of dowry was made from his wife or she was harassed for non ­fulfillment of any such demand. It is also pleaded by respondent (present revision­ist) before the trial court that the revision­ist is ready to keep his wife with him. He also pleaded that since the respondent No. 2 herself left the house of the revi­sionist, he filed a Suit No. 26 of 2000, be.-fore the Civil Judge (Junior Division), Roorkee, for restitution of conjugal rights. It is pleaded on behalf of the revisionist that that case was contested by his wife and after recording evidence and hear­ing the parties, the suit for restitution of conjugal rights was decreed by the trial court [Civil Judge (junior Division), Roorkee] vide his judgment and decree dated 26.05.2001, passed on aforesaid Suit No. 26 of 2000. Lastly, it is pleaded by the revisionist that the respondent No. 2 did not honour the decree passed by the trial court, as such, she is not entitled to any maintenance.

4. However, the trial court after re­cording the evidence and hearing the parties, allowed the application under Section 125 of Cr.P.C., directing the re­visionist to pay Rs. 500/- per month to the respondent No. 2, vide its order dated 30 of June 2003, passed in Case No. 120 of 2002. Hence, this revision.

5. Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973, reads as under :

"(4) No wife shall be entitled to re­ceive an allowance for the mainte­nance or the interim maintenance and expenses of proceeding, as the case may be, from her husband un­der this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living sepa­rately by mutual consent."

6. Referring to aforesaid provision, learned counsel for the revisionist pointed out that judgment and decree dated 26.05.2001, passed by Civil Judge (Jun­ior Division) Roorkee, in Suit No. 26 of 2000, whereby decree for restitution of conjugal rights was passed against the re­spondent No. 2 Munazra, since not com­plied with by her, as she did not join company of her husband (revisionist), as such, the trial court (Judge, Family Court, Haridwar) has committed grave error of law in not holding that the respondent No. 2 lived without sufficient reason sepa­rately from her husband, and as such, she was not entitled to maintenance under Section 125 of Cr.P.C. On perusal of the impugned order dated 30 of June 2003, passed by Judge, Family Court, Haridwar, this Court finds that though said court has observed that decree for restitution of conjugal rights was passed, but since the appeal was pending against said order, as such, that had not attained finality, as such, on its basis the wife can­not be denied maintenance. Learned

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