Select a page




Bench: JUSTICE C.K. Prasad


Law Point:
Wife had no ground to leave the matrimonial house. Maintenance not allowed.





The wife i.e. Non-applicant No. 1 had filed an application on 16-11-1988 in the Court of Judicial Magistrate, First Class, Alirajpur, for grant of maintenance to her at the rate of Rs. 500/- p.m. as also for her daughter i.e. non-applicant No. 2 at the rate of Rs. 200/- p.m. under Section 125 of the Code of Criminal Procedure.

2. The present petitioner is the husband of the opposite party No. 1 and father of the opposite party No. 2. This fact is not under dispute. The wife and the daughter have filed the application for grant of maintenance stating therein that the opposite party No. 1 was married to the petitioner in the year 1960 in accordance with the Hindu rites. The wife had given birth to two sons and a daughter. According to the wife. the daughter who has one of the applicant before the Magistrate, was minor and she lived with Applicant No. 1. According to them the opposite party Mangilal Jain is the Head Master of Government School and posted at village Sarangi. He received Rs. 1400/- per month as salary and has monthly income of Rs. 250/- from the interest from the deposit made in the Co-operative Bank. Thus, according to them the monthly income of the husband was Rs. 1690/- per month. It has been stated that for the last 3-4 years of filing of the application before the learned Magistrate, the husband was not taking care of either his wife or the daughter. The wife has further averred that she has sold all her jewellery and took a loan of Rs. 10,000/- from other persons, for treatment of her husband at Indore The husband was suffering from mental disease. She remained in Indore Mental Hospital for about 10 months. It was stated that she was living alongwith her minor daughter Sudha and son, who was student of M.A. previous in a college at Alirajpur. Her other son is employed and did not live with her. It was alleged that whenever she made demand for maintenance the husband abused her and did not permit her to live with him. On the basis of the aforesaid statements, as stated earlier, the prayer for maintenance was sought from the Court of the learned Magistrate.

3. The husband filed a rejoinder to the aforesaid application and he did not dispute the fact of marriage as also that non-applicant No. 2 was his daughter. However, it was stated that the daughter was being maintained not by the mother but her brother Sudhir Kumar and the wife was also maintained by her son Sudhir Kumar. It has been stated that Sudhir Kumar worked on a part time basis in the Irrigation Department. It was further stated that till March/April month of the year 1988 his wife received half of the salary from the school itself. However, thereafter she was not living with him. Thereafter he had filed an application for stoppage of the payment of half of the salary to her and thereafter since July, 1988, she started living with their son. It has been specifically averred that he was prepared to keep his wife with him as also the daughter.

4. The learned Magistrate by its order dated 13-4-91 dismissed the application filed by the daughter and the wife for their maintenance. Aggrieved by the aforesaid order the wife and the daughter preferred a revision application which was numbered as Criminal Revision No. 25 of 1991. The Revisional Court by its order dated 9-11-1992 allowed the revision-application and set aside the order of the learned Magistrate and directed for payment of maintenance to the wife and the daughter at the rate of Rs. 300/- and Rs 200/- per month respectively.

5. Aggrieved by the aforesaid order the husband his preferred this revision-application before this Court. In view of the rival stand of the parties, the only question which requires determination is as to whether the wife has just ground for refusing to live with her husband. In this connection it is apt to refer to Second Proviso to Section 125(3) of the Code of Criminal Procedure, 1974 which read as under :

“Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any ground of refusal stated by her and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

6. It may be recalled that in support of the case the wife and the daughter has produced one witness besides the evidence of the wife herself. The evidence of the PW 2, Nandkishore, has been rejected by the Trial Court as also the Revisional Court. I do not find any reason to differ with the Courts below on their finding. To arrive at the conclusion as to whether the ground pleaded by the wife is just or not, I have to refer to the evidence of PW 1 herself. The wife has specifically stated that she was being abused when she made demand for maintenance. Nothing has been averred on behalf of the wife to suggest that she was being beaten or abused by the husband excepting at the time when she used to make demand for maintenance. Further she has admitted that it is not possible for her to live with her husband. In view of the above statement of the wife. I am of the view that she has no reasonable ground to leave the matrimonial home. It is admitted that the husband was mentally sick and one can not expect high standard of behaviour from such person. There were competent witnesses in the family itself but the wife has not chosen to examine any one of them to support her case that she had just ground to leave the matrimonial home.

7. Counsel appearing on behalf of the wife and the daughter submitted that to prove the cruelty it is not necessary for the party to examine any other witnesses and the evidence of the wife can be accepted I have no difficult in accepting this as a broad preposition. However, when I go in the facts and circumstances of this case, I find that excepting the fact that at the time when the wife used to make demands for maintenance she was abused by the husband, no further material has been brought on record. As I have stated earlier this does not constitute a ground for leaving the matrimonial home. Accordingly, I find and hold that the wife has no reasonable ground to leave her husband.

8. In the result, I find that the view taken by the learned Magistrate was perfectly justified which ought not to have interfered by the Revisional Court. The “Revisional Court wrongly interfered with the order of the learned Magistrate. In the result, the order of the Revisional Court dated 9-11-1992 passed in Criminal Revision No. 25 of 1991 is set aside and that of the learned Magistrate dated 30-4-1991 passed in Criminal Case No. 352/88 is restored.

The revision-application thus stands allowed.

Petition allowed.

DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.

You may contact me for legal consultation or advice by visiting Contact Us

If you have any query related to gender biased laws join SahodarWhatsapp Groups by sending Whatsapp message “Subscribe” to Sahodar Trust No. 9811850498


Leave a reply

Your email address will not be published. Required fields are marked *


This site uses Akismet to reduce spam. Learn how your comment data is processed.