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Bench: JUSTICE S.L. Kochar

SMT. RENU Vs. HIRALAL @ HARISH On 5 March 2002

Law Point:
Interim Maintenance : Husband filed Sufficient Material i.e. Decree of Restitution of Conjugal Rights and Execution Proceedings : In all Proceedings Wife did not Appear and Allege that Decree was Obtained by Fraud : Non-applicant Husband made Serious and Conscious Effort for Reconciliation and Keeping and Maintaining Wife but She Denied Flatly. Revisional Court Committed no Error of Law and Fact while Setting Aside Order of Grant of Interim Maintenance.





1. This revision has been preferred against the order dated 6.11.2001 passed by IX Addl. Sessions Judge, Indore in Cri. Revision No. 498/2001 thereby setting aside the order of grant of interim maintenance passed in Misc. Cri. Case No. 39/2000 on 12.7.2001 by the Judicial Magistrate, First Class, Indore Shri N.C. Godha.

2. Necessary facts for disposal of this revision are that the applicant-wife had filed an application under Section 125 of the Code of Criminal Procedure for grant of maintenance alleging that after the marriage, she was ill-treated for demand of dowry and the non-applicant husband deserted her without any valid reason. The applicant-wife is compelled to live with her mother. She has no source of income to maintain her whereas the non-applicant husband Heeralal is a businessman having a Kirana-store and is also doing the work of Commission Agent. She has demanded Rs. 3,000/- per month as maintenance and filed a separate application for interim maintenance. According to the applicant-wife, the non-applicant husband earns Rs. 10,000/- per month. The application was supported by affidavit.

3. The non-applicant husband, in reply, submitted before the Trial Court that the applicant Renu of her own voluntarily residing separately. He wants to keep, and live with her for which, he had filed a suit for restitution of conjugal rights which was decreed ex-parte in favour of the non-applicant husband, but the applicant-wife is not complying with the judgment and decree of restitution of conjugal rights. He has also submitted that the applicant-wife is earning fifty to one hundred rupees a day by doing tailoring work and she is able to maintain herself whereas he is doing service and getting total emoluments of Rs. 1,000/- per month. He has no additional source of income. Along with the reply, he submitted affidavit and also the documents and decree regarding restitution of conjugal rights.

4. The Trial Court, after considering the rival contentions, granted interim maintenance at the rate of Rs. 500/- per month. Aggrieved by this order, the non-applicant-husband went up in revision which was allowed setting aside the order of interim maintenance on the ground that the Trial Court has failed to see that the applicant-wife has neglected the non-applicant husband without any rhyme and reason. The Trial Court has passed the order of maintenance only on the ground that the parties are having relations as husband and wife, without considering the documents filed by the husband-non-applicant regarding decree of restitution of conjugal rights passed in Case No. 85-A/1999 dated 28.9.1999 and, thereafter, execution proceedings filed thereon. In the said execution proceedings also, the wife-applicant did not appear. Against this order, this revision has been preferred by the applicant-wife.

5. The contention of the learned Counsel for the applicant-wife is that even after obtaining the ex-parte decree of Restitution of Conjugal Rights, the non-applicant husband would not be absolved from his responsibility to maintain the applicant. He further contended that when under Section 125 of the Code of Civil Procedure-Sub-section (1) Explanation-B, a divorced wife has a right to claim for maintenance till her remarriage. The wife against whom the decree of Restitution of Conjugal Rights has been passed by the Civil Court is required to consider her claim independently on the basis of the evidence adduced by the parties without being influenced by the decree of Restitution of Conjugal Rights, that too passed ex-parte. In support of his contention, he relied upon a judgment rendered by this Court reported in 1987 Cr.LJ 525, Babulal v. Sunita.

6. Learned Counsel for the non-applicant husband has submitted the copy of the order-sheet showing the fact that before the Trial Court, the husband had made a serious endeavour to take the applicant-wife with him and also shown his willingness to maintain her, but the wife has denied it straightaway saying :

“xxx xxx xxx xxx xxx xxx”

7. The ratio decided in the case of Babulal v. Sunita (supra), has no application in the facts and circumstances of the present case. In that case, the question was involved whether after passing of ex-parte judgment and decree of Restitution of Conjugal Rights in favour of the husband, the application under Section 125 of the Code of Criminal Procedure for grant of maintenance filed by the wife was maintainable before the Trial Court or not. It was a case relating to the grant of maintenance in favour of the wife. More or less, the same is the situation in other cases relied upon by this Court in Babulal v. Sunita (supra), case. In the present case, at this stage, the Trial Court was required to see the prima facie case for grant of interim maintenance if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. The husband has filed sufficient material i.e. decree of Restitution of Conjugal Rights, thereafter, filed execution proceedings and in all the proceedings, the wife did not appear and also did not allege that the decree was obtained by playing fraud. Apart from this, before deciding the application for grant of interim maintenance, the non-applicant husband also made a serious and conscious effort for reconciliation and keeping and maintaining the wife, but she has denied flatly as mentioned above without assigning any reason. Suffice it to say that the Revisional Court has not committed any error of law and fact while setting aside the order of grant of interim maintenance in favour of the wife in the facts and circumstances of the case and this Court does not find any such illegality, irregularity or perversity in the impugned order to interfere in the revisional jurisdiction.

8. The revision, in consequence, is dismissed with the direction to the Trial Court to decide the application for maintenance positively within a period of four months from the date of receipt of the copy of this order. Both the parties are directed to file a copy of this order through their Counsel immediately after receipt thereof.

Revision dismissed.

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