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2013 Supreme(UK) 663
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
U.C. Dhyani, J.
Kailash Chandra Kandpal - Applicant
Versus
Beena Kandpal - Respondent
Criminal Misc. Application (C-482) No. 400 of 2009
Decided On : September 04, 2013
Advocate Appeared:
Mr. P.C. Petshali, Advocate holding brief of Mr. L.K. Tiwari, Advocate for the applicant
Mr. Lalit Tiwari, Advocate for the respondent
A wife may be entitled to maintenance allowance under Section 125 of Cr. P.C. if she is unable to maintain herself and has valid reasons for living separately from her husband.
Headnote:
Maintenance Allowance - Section 125 of Cr. P.C. - [125 of Cr. P.C.] - The court discussed the provisions of Section 125 of the Criminal Procedure Code, emphasizing that a wife may be entitled to maintenance if she is unable to maintain herself and if she has sufficient reasons for living separately from her husband. The court also highlighted the principles established in N. Bose vs D.K. Bose, T. Bhuwneshari vs Radhakrishnan, and C.P. Leela vs M. Bhaskaran, which emphasize that a wife's ability to earn something does not necessarily mean she is able to maintain herself.
Fact of the Case:
The wife filed for maintenance allowance under Section 125 of Cr. P.C. Husband contested the application, claiming that the wife had sufficient means to earn her livelihood. The court found that the wife had valid reasons for living separately from her husband and was unable to maintain herself.
Finding of the Court:
The court affirmed the findings of the trial court and the revisional court, granting maintenance allowance to the wife. However, the court modified the quantum of maintenance allowance based on the husband's income.
Issues: The main issue was whether the wife was entitled to maintenance allowance under Section 125 of Cr. P.C. and if the quantum of maintenance allowance was appropriate.
Ratio Decidendi: The court held that the wife, who was living separately from her husband with sufficient reasons, was entitled to maintenance allowance. The court also emphasized that the wife's ability to earn something does not necessarily mean she is able to maintain herself.
Final Decision: The court affirmed the grant of maintenance allowance to the wife and modified the quantum of maintenance allowance based on the husband's income.
U.C. Dhyani, J.
The applicant, by means of present application / petition under Section 482 of Cr. P.C., seeks to quash the order dated 24.03.2009, passed by Sessions Judge, Almora, in criminal revision no. 26 of 2008, Kailash Chandra Kandpal vs Smt. Beena Kandpal as also the order dated 30.08.2008, passed by Chief Judicial Magistrate, Almora, in Criminal Misc. Case No. 26 of 2008, Smt. Beena Kandpal vs Kailash Chandra Kandpal under Section 125 of Cr. P.C.
2) Smt. Beena Kandpal (wife) filed an application against Kailash Chandra Kandpal (husband) for grant of maintenance allowance under Section 125 of Cr. P.C. in the court of Chief Judicial Magistrate, Almora. The same was contested by the husband. Evidence was adduced by the parties. After considering the evidence on record, learned Chief Judicial Magistrate, Almora, vide judgment and order dated 30.08.2008, allowed the application of the wife. Husband was directed to pay a sum of Rs. 2,000/- per month to his wife as maintenance allowance. Aggrieved against the order dated 30.08.2008, a criminal revision was preferred by the husband, which criminal revision was dismissed vide impugned judgment and order dated 24.03.2009. Aggrieved against the same, present application under Section 482 of Cr. P.C. was moved by the applicant-husband.
3) This fact is under no dispute that the parties were married to each other. It was alleged by the wife that on 18.06.2006, she was ousted from her matrimonial home. Her streedhan was not returned to her by her husband and in-laws. Respondent-wife said that her husband, who was having sufficient means, ignored and refused to maintain her. Respondent-wife also said that she was unable to maintain herself. It was stated that the husband was working in an Intermediate College at Ghaziabad. The monthly income, as on the date of filing of the application, was Rs.5,000/-. Husband was also earning another Rs.5,000/- by arranging tuitions. Her father-in-law was a retired employee of the Education Department. The husband also owned a shop in village Kanda Naula. Thus, the total monthly income of the husband, according to the wife, was Rs.20,000/-.
4) On the other hand, it was said by the husband that his wife was still living in a part of his house, at her matrimonial home. The streedhan was still with the wife. She was working as anganwadi worker and was drawing a salary of Rs. 2,500/- per month. Father of his wife was a Head Master drawing a salary of Rs. 14,000/- per month and the brother-in-law of the husband was Hawaldar in the Indian Army. His wife has sufficient means to earn her livelihood. Three dead children were begotten by the respondent-wife out of their wedlock. When the doctors opined that she was unable to give birth to a child, then only respondent-wife permitted her husband to go for second marriage. Husband started harassing her, no sooner he entered into second marriage. Both the parties entered into the witness box in support of their contentions.
5) There is no room for doubt in the instant case that if the wife was living separately from her husband, there were sufficient reasons for her to stay alone in her matrimonial home. Since the wife was unable to procreate a child, therefore, she permitted her husband to enter into matrimonial alliance with another woman. The husband ignored and ill-treated his first wife, no sooner he went for second marriage. Not only the husband ignored her but, he also ill-treated his first wife, for, she outlived utility for him.
6) Sub-Section (4) of Section 125 of Cr. P.C. provides that no wife shall be entitled to receive an allowance for maintenance from her husband if, without any sufficient reason, she refuses to live with her husband. In the instant case, the wife is living separately from her husband with sufficient and cogent reasons. The husband went for second marriage (of course, with the consent of his first wife) and also harassed and ill-treated her, because he could pull on his
