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2002 Supreme(MP) 281
2002 (2) JLJ 117
S.L. Kochar, J.
Renu (Smt.) v. Hiralal
Cr. Revn. No. 762 of 2001; against the order of IX Additional
Sessions Judge, Indore, passed in Cr. Revision No. 498 of 2001;
Decided on 5.3.2002.
V.K. Jain for applicant; P. Newalar for non-applicant.
Headnote:(1) Criminal P.C., 1973 -- S. 125(3) -- interim maintenance -- wife not inclined to join company of husband despite of decree for conjugal rights -- offer of living together flatly refused without assigning any reason -- not entitled to interim maintenance.
(2) Hindu Marriage Act, 1955 -- S. 9 -- wife not complying with decree for conjugal rights -- offer of living together flatly refused -- wife not entitled to interim maintenance.
The applicant-wife had filed an application under section 125 of the Code of Criminal Procedure for grant of maintenance alleging that after the marriage, she was ill-treated for demand of dowry and the non-applicant-husband deserted her without any valid reason. [Para 2
The trial Court, after considering the rival contentions, granted interim maintenance at the rate of Rs. 500/- per month. Aggrieved by this order, the non-applicant-husband went up in revision which was allowed, setting aside the order of interim maintenance on the ground that the trial Court has failed to see that the applicant-wife has neglected the non-applicant-husband without any rhyme and reason. The trial Court has passed the order of maintenance only on the ground that the parties are having relations as husband and wife, without considering the documents filed by the husband-non-applicant regarding decree of restitution of conjugal rights passed in Case No. 85A/99 dated 28.9.1999 and thereafter, execution proceedings filed thereon. In the said execution proceedings also, the wife-applicant did not appear. Against this order, this revision has been preferred by the applicant wife. [Para 4
Held: The husband has filed sufficient material i.e. decree of Restitution of Conjugal Rights, thereafter, filed execution proceedings and in all the proceedings, the wife did not appear and also did not allege that the decree was obtained by playing fraud. Apart from this, before deciding the application for grant of interim maintenance, the non-applicant-husband also made a serious and conscious effort for reconciliation and keeping and maintaining the wife, but she has denied flatly as mentioned above without assigning any reason. Suffice it to say that the Revisional Court has not committed any error of law and fact while setting side the order of grant of interim maintenance in favour of the wife. 1987 CrLJ 525 distinguished. [Para 7
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 125¼3½ && varfje Hkj.kiks"k.k && nkaiR; vf/kdkjksa ds fy, fMØh ds ckotwn iRuh dk >qdko ifr ds lkFk jgus dk ugha && lkFk jgus dk izLrko fcuk dkj.k crk, Li"Vr% Bqdjk;k && varfje Hkj.kiks"k.k dh gdnkj ughaA
¼2½ faganw fookg vf/kfu;e] 1955 && /kkjk 9 && iRuh }kjk nkaiR; vf/kdkjksa ds fy, fMØh dk vuqikyu ugha && LkkFk jgus dk izLrko Li"Vr% Bqdjk;k && iRuh varfje Hkj.kiks"k.k dh gdnkj ughaA
vkosnd&iRuh us naM izfØ;k lafgrk dh /kkjk 125 dh v/khu Hkj.kiks"k.k ds iznku ds fy, vkosnu ;g vfHkdfFkr djrs gq, fd;k Fkk fd fookgkijkar ngst dh ek¡x ds dkj.k mlls nqO;oZgkj fd;k x;k rFkk vukosnd𝔦 us fcuk fdlh fof/kekU; dkj.k mldk vfHkR;kx fd;kA ¿ iSjk 2À
ijLij fojks/kh ladFkuks ij fopkj djus ds i‘pkr~ fopkj.k U;k;ky; }kjk #- 500@& izfrekl dh nj ls varfje Hkj.kiks"k.k iznku fd;k x;kA bl vkns‘k ls O;fFkr gks dj vukosnd𝔦 us iqujh{k.k ds fy, vkosnu fd;k tks varfje Hkj.kiks"k.k dk vkns‘k bl vk/kkj ij vikLr djrs gq, eatwj fd;k x;k fd fopkj.k U;k;ky; ;g ns[kus eas foQy jgk gS fd vkosnd&iRuh us vdkj.k vukosnd𝔦 dh mis{kk dh gSA fopkj.k U;k;ky; }kjk] ifr&vukosnd }kjk ekeyk Ø- 85&,@99 esa ikfjr nkaiR; vf/kdkjksa ds izR;kLFkkiu dh fMØh fnukd 28-9-1999 rFkk] rRi‘pkr~ ml ds vk/kkj ij Qkby dh xbZ fu"iknu dk;Zokgh ij fopkj fd, fcuk Hkj.kiks"k.k dk vkns‘k dsoy bl vk/kkj ij ikfjr fd;k x;k gS fd i{kdkjksa ds laca/k ifr&iRuh ds gSA mDr fu"iknu dk;Zokgh esa Hkh iRuh&vkosnd milatkr ugha gq,A bl vkns‘k ds fo#) vkosnd&iRuh }kjk ;g iqujh{k.k izLrqr fd;k x;k gSA ¿ iSjk 4À
vfHkfu/kkZfjr % ifr us i;kZIr lkexzh] vFkkZr~ nkaiR; vf/kdkjksa ds izR;kLFkkiu dh fMØh Qkby dh gS] rRi‘pkr~ fu"iknu dk;Zokgh Qkby dh gS rFkk leLr dk;Zokfg;ksa esa iRuh milatkr ugha gqbZ rFkk mlus ;g vfHkdFku Hkh ugha fd;k fd fMØh diV }kjk vfHkizkIr dh xbZ FkhA blds vfrfjDr] varfje Hkj.kiks"k.k ds iznku ds fy, vkosnu fofu‘pr gksus ls iwoZ vukosnd𝔦 us lqyg ds fy, rFkk iRuh dks j[kus vkSj mldk Hkj.kiks"k.k djus ds fy, xaHkhj vkSj lpsru ps"Vk dh ijarq iRuh us] Åij mfYyf[krkuqlkj] dkj.k crk, fcuk Li"Vr% bUdkj dj fn;k gSa ;g dguk i;kZIr gS fd iRuh ds i{k esa ikfjr varfje Hkj.kiks"k.k ds iznku dk vkns‘k vikLr djrs le; iqujh{k.k U;k;ky; }kjk fof/k rFkk rF; dh dksbZ xyrh ugha gqbZA 1987 lhvkj ,y ts 525 izHksfnrA ¿ iSjk 7À
This revision has been preferred against the order dated 6.11.2001 passed by IX Addl. Sessions Judge, Indore in Criminal Revision No. 498/01 thereby setting aside the order of grant of interim maintenance passed in Misc. Criminal Case No. 39/2000 on 12.7.2001 by the Judicial Magistrate First Class, Indore Shri N.C. Godha.
2. Necessary facts for disposal of this revision are that the applicant-wife had filed an application under section 125 of the Code of Criminal Procedure for grant of maintenance alleging that after the marriage, she was ill-treated for demand of dowry and the Non-applicant-husband deserted her without any valid reason. The applicant-wife is compelled to live with her mother. She has no source of income to maintain her, whereas the Non-applicant-husband Heeralal is a businessman having a Kirana store and is also doing the work of commission agent. She has demanded Rs. 3,000/- per month as maintenance and filed a separate application for interim maintenance. According to the applicant-wife, the Non-applicant-husband earns Rs. 10,000/- per month. The application was supported by affidavit.
The Non-applicant, in reply, submitted before the trial Court that the applicant Renu, of her own is voluntarily residing separately. He wants to keep and live with her for which he had filed a suit for restitution of conjugal rights which was decreed ex parte in favour of the Non-applicant-husband, but the applicant-wife is not complying with the judgment and decree of restitution of conjugal rights. He has also submitted that the applicant-wife is earning fifty to one hundred rupees a day by doing tailoring work and she is able to maintain herself, whereas he is doing service and getting total emoluments of Rs. 1,000/- per month. He has no additional source of income. Alongwith the reply, he submitted affidavit and also the documents and decree regarding restitution of conjugal rights.
4. The trial Court, after considering the rival contentions, granted interim maintenance at the rate of Rs. 500/- per month. Aggrieved by this order, the non-applicant-husband went up in revision which was allowed, setting aside the order of interim maintenance on the ground that the trial Court has failed to see that the applicant-wife has neglected the non-applicant-husband without any rhyme and reason. The trial Court has passed the order of maintenance only on the ground that the parties are having relations as husband and wife, without considering the documents filed by "the husband-non-applicant regarding decree of restitution of conjugal rights passed in Case No. 85A/99 dated 28.9.1999 and thereafter, execution proceedings filed thereon. In the said execution proceedings also, the wife-applicant did not appear. Against this order, this revision has been preferred by the applicant-wife.
5. The contention of the learned counsel for the applicant-wife is that even after obtaining the ex parte decree of restitution of conjugal rights, the Non-applicant-husband would not be absolved from his responsibility to maintain the applicant. He further contended that when under section 125 of the Code of Criminal Procedure Sub-section (1) Explanation-B, a divorced wife has a right to claim for maintenance till her remarriage. The wife against whom, the decree of restitution of conjugal rights has been passed by the civil Court is required to consider her claim independently on the basis of the evidence adduced by the parties without being influenced by the decree of restitution of conjugal rights, that too passed ex parte. In support of his contention, he relied upon a judgment rendered by this Court reported in 1987 CrLJ 525 (Babulal v. Sunita).
6. Learned counsel for the Non-applicant-husband has submitted the copy of the order sheet showing the fact that before the trial Court, the husband had made a serious endeavour to take the applicant-wife with him and also shown his willingness to maintain her, but the wife has denied it straightway
