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2017 Supreme(Tri) 296
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Shri Subal Das S/o Late Jahar Das – Petitioner
Versus
Smt. Mousumi Saha (Das) W/o Sri. Subal Das – Respondent
Crl. Rev. Pet. No. 89 of 2016
Decided On : 25-07-2017
For the Petitioner: Mr. R. Dutta.
For the Respondent: Mr. S. Sarkar.
Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 125(4) - WHETHER MERE EXISTENCE OR NON-COMPLIANCE OF A DECREE OF RESTITUTION OF CONJUGAL LIFE BY ITSELF WOULD DEBAR THE WIFE FROM GETTING AN ORDER OF MAINTENANCE UNDER SECTION 125(1) OF THE CR.P.C.? - HELD, NO - SECTION 125(4) OF THE CR.P.C. HAS BEEN SUBSTANTIALLY DILUTED, IF NOT VIRTUALLY NEGATED - A DECREE FOR RESTITUTION OF THE CONJUGAL RIGHTS AGAINST THE PETITIONER AS STATED EARLIER MAY BE A CIRCUMSTANCE TO ENABLE THE COURT JUDGE THE CONDUCT OF THE PARTIES AND THERE IS NO AUTHORITY FOR THE PROPOSITION THAT SUCH A DECREE AGAINST THE PETITIONER WOULD BE A COMPLETE BAR TO HER CLAIM FOR MAINTENANCE - THE COURT UNDER THE LAW WILL HAVE TO LOOK ALL THE FACTS AND CIRCUMSTANCES AND THEN EXERCISE JUDICIAL DISCRETION IN THE MATTER OF GRANT AND QUANTUM OF MAINTENANCE.
Fact of the Case:
THE PETITIONER HUSBAND CHALLENGED THE ORDER OF THE MAGISTRATE GRANTING MAINTENANCE ALLOWANCE TO THE RESPONDENTS UNDER SECTION 125(1) OF THE CR.P.C. ON THE GROUND THAT THE RESPONDENT WIFE HAD WITHDRAWN HERSELF FROM THE SOCIETY OF THE PETITIONER WITHOUT ANY REASONABLE EXCUSE OR LAWFUL REASON. THE PETITIONER ALSO RELIED ON THE JUDGMENT OF THE FAMILY COURT DECLARING THAT THE RESPONDENT WIFE HAD DESERTED THE PETITIONER WITHOUT ANY REASONABLE EXCUSE.
Finding of the Court:
THE COURT HELD THAT MERE EXISTENCE OR NON-COMPLIANCE OF A DECREE OF RESTITUTION OF CONJUGAL LIFE BY ITSELF WOULD NOT DEBAR OR DISENTITLE THE WIFE WITHIN THE MEANING OF SECTION 125 OF THE CR.P.C. FROM GETTING AN ORDER OF MAINTENANCE. THE COURT FURTHER HELD THAT THE MAGISTRATE IS ENTITLED TO EMBARK ON A PURPOSIVE INTERPRETATION TO ACHIEVE THE OBJECT OF 125 OF THE CR.P.C IN THE LIGHT OF THE DISCOURSE ABOVE.
Issues: 1. WHETHER MERE EXISTENCE OR NON-COMPLIANCE OF A DECREE OF RESTITUTION OF CONJUGAL LIFE BY ITSELF WOULD DEBAR THE WIFE FROM GETTING AN ORDER OF MAINTENANCE UNDER SECTION 125(1) OF THE CR.P.C.? 2. WHETHER IT IS THE CIRCUMSTANCE AVERRED AND PROVED BY THE PETITIONER WOULD DETERMINE THE EXTENT OF THE APPLICATION OF SECTION 125(4) OF THE CR.P.C.? 3. WHETHER TO ACHIEVE THE PURPOSE OF SECTION 125(1) OF THE CR.P.C. BEING PREVENTION OF VAGRANCY AND DESTITUTION, THE MAGISTRATE IS ENTITLED TO HAVE A PURPOSIVE INTERPRETATION OF SECTION 125(4) OF THE CR.P.C HAVING REGARD TO THE CONSTITUTIONAL EMPATHY TOWARDS THE WOMEN AND CHILDREN?
Ratio Decidendi: THE COURT HELD THAT THE MAGISTRATE IS ENTITLED TO EMBARK ON A PURPOSIVE INTERPRETATION TO ACHIEVE THE OBJECT OF 125 OF THE CR.P.C IN THE LIGHT OF THE DISCOURSE ABOVE. THE COURT FURTHER HELD THAT MERE EXISTENCE OR NON-COMPLIANCE OF A DECREE OF RESTITUTION OF CONJUGAL LIFE BY ITSELF WOULD NOT DEBAR OR DISENTITLE THE WIFE WITHIN THE MEANING OF SECTION 125 OF THE CR.P.C. FROM GETTING AN ORDER OF MAINTENANCE.
Final Decision: THE PETITION WAS DISMISSED AND THE PETITIONER WAS DIRECTED TO PAY THE MAINTENANCE ALLOWANCE TO THE RESPONDENTS IN TERMS OF THE ORDER DATED 22.09.2016.
1. By means of this petition filed under Section 397 read with Section 401 of the Cr.P.C. the order dated 22.09.2016 delivered in Case No. Misc. No. 08 of 2015 by the Sub-Divisional Magistrate [SDJM] Amarpur, Gomati has been questioned inasmuch as according to the petitioner, the claim of the respondent No. 1 for monthly maintenance allowance under Section 125(1) of the Cr.P.C. is barred under Section 125(4) of the Cr.P.C. as the respondent No. 1 herein had withdrawn herself from the society of the petitioner along with her daughter without any reasonable excuse or lawful reason.
2. It is no denying fact that by the judgment dated 25.03.2016 delivered in T.S. (RCR) No. 31 of 2015, the Judge, Family Court, Agartala, West Tripura has clearly declared that the respondent No. 1 being the lawfully married wife of the petitioner had withdrawn herself from the society of the petitioner along with her daughter without any lawful excuse. The said judgment dated 25.03.2016 has not been challenged by the respondent No. 1 and thus the decree of restitution of conjugal rights directing the respondent No. 1 to restitute conjugal life with the petitioner has reached its finality.
3. It is not in the pace of controversy that the respondent No. 1 is legally married wife of the petitioner and the respondent No. 2 is their daughter borne in their wedlock. It is not in dispute as well that the respondent No. 1 with her daughter left the matrimonial home for in-congenial matrimonial circumstances on 27.09.2014. The petitioner has also acceded that against him the respondent No. 1 had filed the complainant in the police station for beating her mercilessly on unlawful demand. The allegations are no less even against the respondent No. 1. It has been observed in the impugned order dated 22.09.2016 as under:
“From the averments, I also find that many cases has been filed by the Petitioner and which was ultimately withdrawn by way of amicable settlement, thus, it is proved that a mental torture was going on since long and Petitioner has been residing in her parents house though recently it has been ordered by the Ld. Family Court to reside petitioner with OP.”
4. Having recorded the evidence, the SDJM has granted maintenance allowance for the respondents herein, who were the petitioners in the petition filed under Section 125 of the Cr.P.C. being case No. Misc.08 of 2005. The said order dated 22.09.2016 whereby the petitioner was directed to pay the respondents a sum of Rs. 5,000/- every month as maintenance allowance has been questioned solely on the premise that since by the judgment dated 26.03.2016 [Exbt.D] the competent civil court has declared that the respondent No. 1 has deserted the petitioner without reasonable excuse and as such the respondent No. 1 is not entitled to have maintenance under Section 125(1) of the Cr.P.C. by operation of Section 125(4) which reads as under:
“No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”
(Emphasis added)
5. Mr. R. Dutta, learned counsel appearing for the petitioner has stated that the respondent No. 1 has left the matrimonial home without any reasonable cause and having being approached several times by the petitioner she refused to restitute the conjugal life. The petitioner herein had finally instituted the suit for restitution of conjugal rights being T.S. (RCR) No. 31 of 2005. The said petition was allowed by this said judgment dated 25.03.2016. According to Mr. Dutta, learned counsel appearing for the petitioner, in view of the provisions of Section 125(4) of the Cr.P.C. and on the face of the definite finding returned by the Judge, Family Court, Agartala, West Tripura by the judgment dated 25.03.2016 tha
