1983 Supreme(MP) 541

Faizan Uddin, J.
Kamla Bai v. Gajanand
Cr. R. No. 527 of 1979 (J); Decided on 1-12-1983.

Headnote:Criminal P. C., 1973 -- S. 125 -- maintenance -- wife when entitled for -- she left husbands house at her own will -- did not return for years -- contracting second marriage by husband justified -- wife not entitled to any relief.

        In revision preferred by the non-applicant, learned Additional Sessions Judge reversed the order of maintenance by holding that as the applicant had herself left her husbands house voluntarily much before the husband took a second wife, the applicant was not entitled for separate maintenance because when she left her husbands protection the husband had neither refused nor neglected to maintain her. It is this finding which has been challenged by the applicant in this revision.

        Held : The Explanation attached to sub-section (3) of section 125 of the Code on which reliance has been placed runs as under :--

       "Explanation-- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to Li"Ve with him."

        A reading of the Explanation gives an impression that as soon as the husband contracted marriage with another woman or kept a mistress, it would afford a just ground for his wifes refusal to Li"Ve with him; but in may opinion if the wife herself is responsible for deserting her husband by leaving his company and depriving him of the marital obligation, the position will have to be viewed from a different angle if in such circumstances the husband after waiting for quite some years was compelled to take a second wife.

        A reading of section 125 of the Code will go to show that it requires as sine qua non for its application neglect by the husband or the father as the case may be and the refusal or neglect to maintain on the part of the husband or father as the case may be constitute a basis for exercise of jurisdiction by the Court. In the present case the applicant has herself admitted in her deposition that behaviour of the non-applicant with her during her stay with him was good and that she was taken by her brother from the house of her husband 14 years before and since then she was Li"Ving with her mother. The evidence also indicates that the non-applicant never deserted or neglected the applicant and it was the applicant herself who had voluntarily left the non-applicants house. It is pertinent to note that she knew that the non-applicant had taken a second wife in the year 1970 and had two children with the second wife but there was not a single word or protest against the same since 1963-64 when she left the roof of her husband till 1975 when she made an application for grant of maintenance. On the basis of the evidence on record both the Courts below have taken a concurrent view that the applicant was never ill-treated by her husband-non-applicant and that she voluntarily left the house of her husband in the year 1963-64 and thereafter never returned back to him. Second wife is said to have been taken by the non-applicant in the year 1970. The non-applicant thus waited for about 6-7 years for the applicant but finding no hope of her return, the non-applicant contracted a second marriage. Thus these facts clearly indicated that the applicant was herself responsible for creating the circumstances which led to the second marriage of the non-applicant and therefore, in my opinion, she cannot claim separate maintenance taking undue advantage of her own default especially when the husband-non-applicant was not guilty of any cruelty or neglect of the applicant on his part. In these special facts and circumstances of the present case I find no justification in granting maintenance to the applicant. 1977 (II) MPWN 414, AIR 1974 SC 1488 and AIR 1979 SC 362 distinguished. AIR 1945 Mad. 44 & AIR 1956 Cal. 134 relied on.