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In the High Court of Judicature for Rajasthan at Jaipur

Bench, Jaipur

O R D E R

S.B. Criminal Revision Petition No.1658 of 2011.

Ajay Kumar

VERSUS

Smt. Kanta

Date Of Order :::

06.02.2013

Hon'ble Mr. Justice R.S. Chauhan

Mr. Rajat Ranjan, Counsel for the Petitioner

Mr. Gajendra Sharma, Counsel for the Respondent

***

Per Court :

The petitioner, Ajay Kumar, is aggrieved by the

order dated 01.10.2011 passed by the Family Court No.1,

Jaipur, whereby the learned Court has directed him to pay a

maintenance of Rs.2000/- to the non-petitioner wife, Smt.

Kanta.

Brief facts of the case are that the petitioner, Ajay

Kumar and the non-petitioner, Smt. Kanta were married on

29.05.1989, according to Hindu Customs and Rites. Out of

the wedlock, two children were borne, namely Monika and

Hitesh. However, subsequently differences arose between

the parties. According to the non-petitioner, Smt. Kanta, her

husband, the petitioner, subsequently married another lady,

namely Rekha. She further claimed that her husband never

divorced her. Instead, she was thrown out of the

matrimonial home. The children continued to live with her

husband. Since, she is unable to look after herself, she had

filed an application under Section 125 Cr.P.C.

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Petitioner filed a reply to the said application.

According to him, in the light of the custom prevailing in

their Community, both, the husband and the wife had taken

“Chhutkara” from each other. A document was duly

executed on stamp paper and was duly attested by the

witnesses. After going through the evidence, by order dated

03.11.2010 the learned Family Court dismissed the

application filed under Section 125 Cr.P.C.

Since, the non-petitioner was aggrieved by the

said order, she filed a revision petition, namely S.B. Criminal

Revision Petition No.1269/2010, before this Court. By order

dated 09.08.2011, this Court remanded the case back to the

learned Family Court. Subsequently the learned Family

Court has granted a maintenance of Rs.2000/- to the wife by

order dated 01.10.2011. Hence, the present petition before

this Court.

Mr. Rajat Ranjan, the learned counsel for the

petitioner-husband, has vehemently contended that since

both the parties had entered into an agreement under which

it was decided that they would live separately and since it

was decided that both the parties would divorce each other,

under Section 125 (4) Cr.P.C. the wife is disentitled from

claiming any maintenance from the husband. Secondly,

since the wife has withdrawn from the matrimonial

company, of her own free will, therefore, she is disentitled

for claiming any maintenance. Thirdly, the petitioner-

husband happens to be a poor person. He is working as a

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washerman and is maintaining two children, born out of the

wedlock. Therefore, he cannot afford to pay a maintenance

of Rs.2000/- per month. Fourthly, the non-petitioner-wife is

working as a maid servant. She is earning sufficient amount

to maintain herself. Thus, she needs no maintenance. Lastly,

in the revision petition, filed by the non-petitioner-wife, this

Court had remanded the case back to the Family Court.

However, according to the learned counsel, without

recording any fresh evidence, the learned Judge has passed

an order for maintenance in favour of the non-petitioner-

wife. Thus, the order deserves to be interfered with.

On the other hand, Mr. Gajendra Sharma, the

learned counsel for the respondent, has streneously

contended that the provision of Section 125 (4) Cr.P.C., are

applicable as long as the marriage subsists. Once the

divorce was mutually taken by the parties, and the

marriage has come to an end, the provision of Section 125

(4) become inapplicable. Secondly, the wife had withdrawn

from the matrimonial home only because she was being

subjected to cruelty by the petitioner. According to the

learned counsel, no women can be expected to stay in the