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1996 Supreme(MP) 585
I (1997) DMC 282
J.G. Chitre, J.
Kamlabai And Anr.
vs
Narayan
DECIDED ON : 9 July, 1996
A wife is not entitled to alimony under Section 125, Cr. P.C. if she voluntarily leaves her husband's house and resides with her parents, and if the husband is willing to keep and maintain both the wife and their daughter.
Headnote:
MAINTENANCE - SECTION 125, CR. P.C. - EXPLANATION - 'KEEPING MISTRESS' - MEANING AND INTERPRETATION - WIFE'S RIGHT TO ALIMONY - CONDITIONS - EVIDENCE REQUIRED.
Fact of the Case:
Wife filed an application for alimony under Section 125, Cr. P.C., alleging neglect and refusal to maintain by her husband. The Judicial Magistrate granted alimony, but the Additional Sessions Judge set it aside on revision.
Finding of the Court:
The court found that the wife failed to prove neglect and refusal to maintain by her husband. The evidence showed that the wife voluntarily left her husband's house and was residing with her parents. The court also found that the husband was willing to keep and maintain both the wife and their daughter.
Issues: Whether the wife was entitled to alimony under Section 125, Cr. P.C.
Ratio Decidendi: The court held that the wife was not entitled to alimony under Section 125, Cr. P.C. because she failed to prove neglect and refusal to maintain by her husband. The court also held that the husband's willingness to keep and maintain both the wife and their daughter was a relevant factor in determining whether the wife was entitled to alimony.
Final Decision: The court dismissed the wife's petition for alimony.
Based on the provided legal document, the court held that maintenance under Section 125 of the Criminal Procedure Code is not granted to a wife who voluntarily leaves her husband's house and resides with her parents, especially when the husband is willing to maintain both the wife and their daughter (!) (!) . The evidence indicated that the wife left her husband's residence voluntarily and was residing with her parents, which is a relevant factor in denying her claim for alimony (!) . Additionally, the court emphasized that the wife failed to prove neglect or refusal to maintain by her husband, and her voluntary separation was a key consideration in the decision (!) (!) (!) .
Therefore, under these circumstances, maintenance is not maintainable for the wife as she did not establish neglect or refusal to maintain, and her voluntary separation with her parents was a significant factor leading to the dismissal of her claim.
J.G. Chitre, J.
1. The petitioner is challenging an order which has been passed by the Addl. Sessions Judge, Shajapur in the matter of Cr. Revision No. 49/90 wherein the learned A.S.J. has set aside the order which was passed by Judicial Magistrate. First Class, Sarangpur in MCC No. 44/84 wherein he granted alimony ofRs.200/- per month payable from present opponent-Narayan S/o Siddhanath.
2. The petitioner Kamlabai had filed an application for getting alimony from her husband Narayan in view of provisions of Section 125, Cr. P.C. 1973 (hereinafter referred to as Code for convenience) on the ground of neglect and refusal to maintain herself and Ramlatabai, the daughter begotten from Narayan. She had also averred that Narayan has kept a mistress named as Bhagwanti bai treating her as his wife. The learned Judicial Magistrate, First Class, Sarangpur held that Kamlabai was able to prove that having sufficient means, Narayan had neglected and refused to maintain both Kamlabai and Ramlatabai. He had granted alimony in favour of Kamlabai to the tune of Rs. 200/- per month alongwith Rs. 100/- per month for Ramlatabai.
3. The Addl. Sessions Judge, Shajapur while deciding the revision petition mentioned above, set aside the order of alimony which was passed by J.M.F.C., Sarangpur in favour of Kamlabai. However, he maintained the order of alimony which was passed in favour of Ramlatabai.
4. In the present petition the order of A.S.J. deciding the said revision and setting aside the order passed in favour of Kamlabai has been assailed. But the order granting alimony in favour of Ramlatabai has not been assailed so far as quantum is concerned.
5. Mr. S.S. Garg, has been heard, the evidence on record has been examined alongwith other necessary and relevant documents.
6. The evidence of Kamlabai shows that when she was residing with her husband Narayan, Narayan was providing her food and clothes. It is her evidence also that at that time also one Bhawaribai was residing with Narayan in the same house. According to her case said Bhawaribai is a woman with whom Narayan had contracted a second marriage or said Bhawaribai is the woman whom Narayan has kept as mistress. Kamlabai has further stated in her evidence that when Narayan had gone to Indore for work, she left his house and went to stay with her parents. It has also come in her evidence that she is residing with her parents voluntarily.
7 Thus, the evidence of Kamlabai shows that she was not neglected when she was residing in the house of her husband Narayan. On the contrary, Narayan provided her food and clothes and there was ill-treatment to her, at the hands of Narayan. Her evidence further shows that she herself deserted Narayan and resided with her parents voluntarily. At the stage it is pertinent to note that Narayan has stated in his evidence that he is ready and willing to keep and maintain both Kamlabai and daughter Ramlatabai.
8. The witnesses namely Ramsingh, Prabhulal and Ranglal did not prove the case of neglect and refusal to maintain brought forth by Kamlabai against her husband Narayan because their evidence is vague and at variance from the evidence of Kamlabai. The evidence of witnesses Ramsingh and Ranglal is based on hearsay information. The evidence of Prabhulal shows that he is facing some prosecution in the Court. His evidence is also suffering from the infirmity that though he claims to have the knowledge of the association of Narayan with Bhawaribai when he gave the evidence in the Court, he was unable to tell as to whether Bhawaribai was residing at the time when he gave the evidence in the Court. The evidence of Kamlabai shows that Bhawaribai was residing with Narayan and Kamlabai for sufficient days. However, Prabhulal has stated that Bhawaribai stayed in the said house for about 2-4 days. This witness has gone to the extent of saying that in his presence Narayan took away Bhawaribai which sounds very much unnatural.
9. The learned Addl. Sessions Judge has right
