IMPORTANT POINT
An ex parte decree for restitution of conjugal rights does not bar a wife's claim for maintenance under Section 125 of the Code.

JUDGMENT :

(Ravindra Maithani, J.) :

The challenge in this revision is made to the order dated 30.09.2023, passed in Case No. 186 of 2022, Smt. Radhika Goyal Vs. Mayank Garg, by the court of Judge, Family Court, Haridwar (“the case”). By it, the revisionist has been directed to pay Rs.25,000/- per month as interim maintenance to the respondent.

2. Heard learned counsel for the parties and perused the record.

3. The respondent has filed an application under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”), which is the basis of the case. According to the respondent, she and the revisionist were married on 28.10.2020, but after the marriage, the revisionist did not establish any physical relationship with her. The respondent was harassed and tortured for the dowry and other reasons. The respondent also stated that the revisionist had a relationship with the servant in the family, due to which, the servant had left thrice. According to the respondent, finally she was expelled from her matrimonial home on 28.02.2023. She is not able to maintain herself, whereas, the revisionist gets Rs.2,50,000/- per month, as he is a distributor and has a major business house. He is income tax payer and has some vehicles.

4. In the case, an application for interim maintenance has also been filed. It has been objected to by the revisionist, inter alia, on the ground that, in fact, the respondent was never harassed and tortured. All the allegations have been denied.

5. It has been the case of the revisionist that, in fact, the respondent herself had deserted the company of the revisionist. She is able to maintain herself. She does accounting work also. According to the revisionist, he earns Rs.24,000/- per month. He is a proprietor of a firm; He has to take care of his old age mother also.

6. After hearing the parties, by the impugned order, the revisionist has been directed to pay Rs.25,000/- per month.

7. Learned counsel for the revisionist would submit that the order is bad in the eyes of law. He would submit that revisionist has filed a suit for restitution of conjugal rights against the informant which has been decreed ex parte. Despite, that the respondent did not join the company of the revisionist. It is desertion without any reason. It is argued that subsequent to it, the revisionist has filed a suit for divorce because even after decree for restitution of conjugal rights, the respondent did not join his company for the statutory period. It is also argued that the income of the revisionist has been assessed based on his Income Tax Return given in the year 2021, which is not lawful. It is argued that thereafter that the income of the revisionist has decreased; the individual Income Tax Return of the revisionist has not been taken into consideration; the Income Tax Return of the firm of which the revisionist is a proprietor has been considered by the Court.

8. The impugned order is quite in detail. There are allegations from both sides with regard to the reasons for staying separate of the respondent. The effect of ex parte decree passed under Section 9 of the Hindu Marriage Act, 1955, has been noticed in the impugned order in para 9, when the court below has referred to the judgment, in the case of Babita vs. Munna Lal, (By the Hon’ble Delhi High Court decision on 22.08.2022, Crl. Rev. P. 1001 of 2018) in which, the Hon’ble Delhi High Court has, inter alia, observed that the effect of ex parte decree for restitution of conjugal rights per se will not deny the claim of a wife under Section 125 of the Code.

9. The order which is impugned is not a final order at this stage. The reasons for staying separate may conclusively be determined, once parties are permitted to lead their evidence. It is admitted that the revisionist runs a proprietorship firm which means, he is the sole owner of it. The income of the firm for the year 2021 has been shown at Rs.6,25,606/-. The court below has assessed it as the income of the year 2021, whe