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Bench: JUSTICE D.P. Mohapatra


Law Point:
Section 125 — Maintenance — Maintainability — Decree by Civil Court — Divorce on the ground of wife’s desertion — Dismissal of the suit filed by the wife — Whether proceedings claiming maintenance maintainable ? (No).





The question on which the fate of this case hinges is whether, in the facts and circumstances of the case, the wife’s claim for maintenance against her husband is entertainable. To be more specific, whether in view of the decree passed by the Civil Court granting the husband’s prayer for divorce on the ground of desertion by wife and dismissal of the suit filed by the wife claiming maintenance from her husband the proceeding under Section 125 of the Code of Criminal Procedure is maintainable.

2. The petitioner Sri Jasholal Agrawal @ Jain is the husband of the opposite party Smt. Puspabati Agrawala. In this application filed under Section 482 of the Cr.P.C., the petitioner has assailed the order of the learned Judicial Magistrate, First Class, Kantabanji in C.M.C. No. 41 of 1080 granting the prayer of the opposite party for maintenance and directing him to pay Rs. 300/- per month from the date of filing of the petition which was confirmed by the learned Addl. Sessions Judge, Titilagarh by the order dated 24.11.92 in Criminal Revision No. 6/9 of 1992. The criminal case was registered on the application filed by the opposite party under Section 125 Cr.P.C. claiming maintenance from the petitioner at the rate of Rs. 500/- per month. It is the case of the opposite party that she is the legally married wife of the petitioner; that their marriage was solemnised on 17.5.70 as per prevailing caste customs and rituals; that after marriage both of them lived together as husband and wife for a short period whereafter tae petitioner started illtreating her on the plea of insufficiency of dowry. He assaulted her, declined to provide her food and clothing and on 27.4.71 the petitioner and his mother tried to burn her by sprinkling kerosene on her body. In such situation her father brought her to his house where she spent about three years. Thereafter, on the request of the father of the petitioner, the intervention of local gentlemen and on the assurance given by the petitioner that there will be no occasion for complaint due to ill treatment or assault on her, the opposite party agreed to come to the house of the petitioner. But in reality after a short time she was subjected to assault and ill-treatment as before and when such ill-treatment became unbearable, the opposite party was again taken back to her father’s house in 1974. Since then she has been living with her parents. The petitioner has neither made any attempt to take her back to his house nor cared to make any provision for her maintenance. Since the opposite party has no means to maintain herself and the petitioner has adequate means, to maintain her she prayed for maintenance from him at the rate of Rs. 500/- per month. She alleged that he owned two pucca houses and a rice mill at Balasore from which his monthly income is around Rs. 1000/-.

3. The petitioner in his objection admitted his marriage with the opposite party, but denied the allegations of assault, ill-treatment on account of demand of dowry, etc. He took the plea that the opposite party has left his house voluntarily and has chosen to stay away from him without any justification and without sufficient reason. The petitioner also denied the allegation made by the opposite party regarding his properties and income and stated that due to the unhappy family life due to the conduct of the opposite party he has not been able to do any work and his income has dwindled to about Rs. 500/- per month.

The petitioner in his objection also challenged the maintainability of the petition for maintenance on the ground that the opposite party had filed a suit, T.S. No. 33 of 1980 in the Court of Subordinate Judge, Titilagarh for maintenance and the petitioner had filed a suit, T.S. No. 14 of 1980 in the Court of Subordinate Judge. Patnagarh for restitution of conjugal life or in the alternative for divorce. The suit for maintenance filed by the opposite party was dismissed and the suit filed by the petitioner for restitution of conjugal life/divorce was decreed and a decree for divorce was granted.

4. Both the parties led oral and documentary evidence in support of their respective cases.

5. The learned Magistrate, on consideration of the evidence on record negatived the petitioner’s objection regarding maintainability of the petition under Section 125, Cr.P.C. and on merits held that the opposite party had successfully established her case for maintenance and holding that Rs. 300/- per month will be the fair and reasonable amount to be awarded as maintenance of the wife directed the petitioner to pay the said sum from the date of filing of the application.

In the revision filed by the petitioner the question of maintainability of the application was reiterated before the Additional Sessions Judge, who repelled it holding that the decree for divorce was granted ex parte; that a divorced wife is also entitled to maintenance under Section 125, Cr.P.C. and that her prayer for maintenance could not be rejected merely on the ground that a suit for maintenance filed by her had been dismissed for default or that in the suit for divorce she had not made any claim for alimony.

On the facts and findings discussed above the point formulated earlier arises for determination.

6. The main thrust of the arguments of Sri B.N. Rath learned Counsel for the petitioner was that the decision of the Civil Courts granting petitioner’s prayer for divorce on the ground of desertion by his wife and the dismissal of the suit for maintenance filed by the latter are binding on the Criminal Court. Therefore, the learned Magistrate committed error in granting the prayer of the opposite party for maintenance ignoring the material evidence in this regard.

Sri B. Sahoo, appearing for the opposite party, on the other hand contended that merely because the petitioner’s prayer for divorce of his wife on the ground of desertion has been granted by the Civil Court that does not disentitle her for claiming maintenance from her husband. According to Sri Sahu, the Courts below rightly negatived the contentions raised on behalf of the petitioner against maintainability of the application for maintenance and correctly decided the case on merits.

7. There is no dispute regarding the position that the right of a wife for maintenance is an incidence of the status or estate of matrimony; that according to the text of Hindu Law to which the parties belong, the obligation to maintain the wife arises from the very existence of the relationship between the parties and that apart from the liability which the husband incurs under personal law or maintaining his wife, the provisions of Section 125. Cr.P.C. independently vest the statutory right in a wife to claim maintenance from her husband (See 62 (1986) Con.LT 92, Saraswati Meher v. Jadumani Meher) and that a divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under Section 125(1), Cr.P.C. (See AIR 1979 SC 362, Bai Tahira v. Ali Hussain Fissali Chothia and Anothers). It is also not disputed that no wife shall be entitled to receive maintenance from her husband under Section 125, Cr.P.C., if she refuse to live with her husband without any sufficient reason which principle is incorporated in Sub-section (4) of Section 125. The specific question that arises for consideration in the present case is whether the wife’s claim for maintenance is to be rejected summarily since similar plea made by her in the Civil Court has been rejected and since her husband’s plea that she deserted him has been accepted by the Civil Court. In this connection, it has to be taken as an accepted principle that the finding of the Civil Court in a matrimonial proceeding is binding on the Criminal Court and the Criminal Court is not entitled to question the correctness of validity of the Civil Courts’ decision. (See (1989) 3 OCR 142, Purna Chandra Digal v. Sila Digal @ Tube Digal and Another; (1990) 3 OCR 344, Sri Ram Prasanna Das v. Bhabani Devi; 72 (1991) Con.LT 104; Neheru Bag v. Tapaswini Bag and Another; 1981 Cr.LJ 1467, Taja Singh v. Smt. Chhot; 1988 (2) Crimes 599, Hari Kishan v. Smt. Shanti Devi).

8. Coming to the case in hand, from the discussions in the orders passed by the Courts below it is clear to me that the Courts have not made any attempt to ascertain if the Civil Court either in the suit filed by the husband for restitution of conjugal life/divorce or in the suit filed by the wife for maintenance had recorded a finding that she had deserted her husband. As noted earlier the consensus of the views taken in the decisions referred to earlier clearly bring out the position that it is the finding of the Civil Court regarding desertion which is binding on the Criminal Court. If it was a case of a decree of annulment of marriage then such decision of the Civil Court per se would be sufficient to disentitle the wife to claim maintenance. But such is not the position here. The contention in the present case is that the Civil Courts’ finding that the wife had deserted her husband and had not joined the matrimonial home on her Will and desire is binding on the Criminal Court. It was therefore incumbent on the part of the Courts below to scrutinise the judgments passed in the civil suits and ascertain if any such finding had been recorded therein. A further question which needs to be examined in the case is that if such a finding was recorded by the Civil Court whether in the averments made in the petition filed under Section 125, Cr P.C. and in the evidence led in the proceeding there is anything to show that subsequent to the decree of the Civil Court there has been a material change in the fact position or a supervening circumstances has taken place which entitles the wife to maintenance. No such attempt has been made by the Courts below. The learned Additional Sessions Judge repelled the contention relating to maintainability of the application merely on the ground that change of status of the claimant from “wife” to “divorced wife” during pendency of the proceeding under Section 125, Cr.P.C. is not material and it will not be prudent to hold that on account of such change of status that the proceeding is not maintainable. The approach is completely erroneous based on misconception about the nature of the objection raised and the question for consideration. The learned Magistrate also does not appear to have delved deep into the question. He merely discussed some decisions of this Court and other High Courts laying down the general principles discussed in the preceding paragraphs and appears to have laid much stress on the fact that the decree of divorce being an ex parte one could not be taken advantage of by the husband for negativing the wife’s claim of maintenance.

9. From the foregoing discussions, it is manifest that the Courts below did not approach the case in its proper perspective and failed to consider the relevant questions arising in it. That being the position it is my considered view that for proper adjudication of the dispute the case should be remitted to the learned Magistrate for fresh disposal.

10. Accordingly, the Criminal Misc. Case is allowed; the orders passed by the learned Addl. Sessions Judge and learned Magistrate are set aside and C.M.C. No. 41 of 1980 is remitted to the learned Judicial Magistrate, First Class, Kantabanji for fresh consideration in the light of observation and discussions in the judgment and for disposal in accordance with law. He will afford opportunity to the parties to lead further evidence in case he deems it necessary.

Petition allowed.

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