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| Maintenance Denied, No maintenance to wife, 125 CRPC< |
125 Cr.P.C. Maintenance Denied – Maintenance Rejected to wife who refuses to live with her husband with a reason that she did not live with her parents-in-law. Imposition of such unreasonable pre-condition cannot be said to be just cause for the wife to live separately from her husband.
By means of the present petition, the petitioner has
challenged the order dated 04.10.2012, whereby the revision preferred by
respondent no.2 has been allowed and the judgment and order of the trial court
dated 25.05.2012 allowing maintenance for specific period has been set aside.
Brief facts of this case are that the petitioner filed
an application under Section 125 Cr.P.C. claiming maintenance, wherein
proceedings took place ex parte and the application was allowed by the trial
court vide order dated 11.02.2009.
On perusal of the record, it transpires that ex parte
order was later on recalled and the matter was renumbered. Thereafter, both the
parties put up their respective cases before the trial court. The trial court
after framing three issues recorded specific finding and allowed application
under Section 125 Cr.P.C. vide order dated 25.05.2012 specifying that the
amount of maintenance is to be given for the period w.e.f. 02.04.2008 to
26.05.2011 at the rate of Rs.1500/- per month to the petitioner/wife.
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Feeling aggrieved by the aforesaid order dated
25.05.2012, respondent no.2 preferred Criminal Revision which was allowed by
the Special Judge vide order dated 04.10.2012, setting aside the order dated
25.05.2012 passed by the trial court. Hence this petition.
Learned counsel for the petitioner has contended that
in this case, finding recorded by the revisional court is patently illegal,
perverse and against weight of evidence on record. The revisional court was not
justified in re-appreciating the evidence on record as that was beyond the
scope of the revisional court. The revisional court could not record any patent
irregularity in the order of the trial court, therefore, the impugned order
dated 04.10.2012 is liable to be set
aside and the judgment and order of the trial court dated 25.05.2012 is
liable to be restored and sustained.
Learned AGA, while supporting the judgment and orders
impugned in the present petition, has submitted that the very reasons given in
the impugned judgment and order dated 04.10.2012 passed by the revisional court
are piece of categorical admission of the petitioner before the trial court
that in case her mother-in-law resides with her husband, then she will not
reside with her husband. Meaning thereby, that the petitioner wants to impose
condition on respondent no.2-her husband-that in case her husband wants to
enjoy her company then he will have to desert his mother. This condition was
not found sufficient.
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Learned AGA further contended that
guarantee/undertaking was given for securing safety of the petitioner by her
husband, even then she was not willing to live with her husband as such there
was no justification for living separately from her husband, therefore, no
maintenance can be awarded to her.
Learned AGA has referred Section 125 (3) Cr.P.C. in
support of his contention which reads as under:
"Section 125 (3) Cr.P.C. If any person so ordered
fails without sufficient cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence such person, for the
whole or any part of each month's [allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,] remaining unpaid
after the execution of the warrant, to imprisonment for a term which may extend
to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless application be made to the
Court to levy such amount within a period of one year from the date on which it
became due:
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 grounds 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."
In view of rival contentions made by the parties and
after considering the above submissions - the moot point which arises for
consideration in this petition relates to the fact whether the petitioner has
just and reasonable cause to refuse to live with her husband?
In this context, the court have perused the judgment
and orders of both the courts below wherein it is recorded that the trial court
somehow overlooked the fact which has surfaced in the cross examination of the
petitioner that the condition imposed by the petitioner is stiff one. It
pertains to condition that the only way open to the husband-respondent no.2-is
to first desert his mother and then to reside with his wife-the petitioner.
This aspect of the case has got substantial bearing in this case, because in order
to receive the amount of maintenance, it was incumbent upon the wife to prove
reasonably that she has got just cause to live separately from her husband. But
in this case, the wife herself is imposing unreasonable condition for
respondent no.2-her husband to first desert his mother before the petitioner
can reside with him.
Can a wife, in the absence of any special reasonable
cause, insist upon her husband, as a precondition, that he should first desert
his parents in order to enjoy company of his wife. Certainly, in the absence of
any reasonable cause the condition so imposed will always be termed
unreasonable and unjust. No such special reasons have been assigned by the
petitioner as to why she is not willing to live with and in the company of her
mother-in-law. Thus imposition of the above pre-condition cannot be said to be
just and reasonable cause for the petitioner to live separately from her
husband.
In view of the above particular scenario of this case,
the revisional court was justified in taking note of the error apparent on
record in the judgment and order dated 25.05.2012 passed by the trial court
pertaining to statement as appeared in the cross examination of wife. The
exercise done by the revisional court thus cannot be termed as re-appreciation
of evidence. It is obvious that the revisional court did not record any fresh
finding in regard to statement of wife or it did not introduce any new fact. It
can not be said here that the revisional court exceeded its jurisdiction.
The imposition of unreasonable condition as an excuse
for living separately by either of the spouse is not permissible in law.
Here, facts reveal that the trial court did not take
integral note of the evidence on record and it somehow failed to appreciate
properly the facts which emerged in the cross examination of the petitioner.
Mistake of trial court is apparent on record. If mistake was apparent on
record, then the mistake can be rectified by the revisional court.
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