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| No Maintenance to wife, 125 Cr. P. C.Maintenance Denied, 125 Cr.P.C.  ; |
125 Cr.P.C. Maintenance Denied- Maintenance has wrongly been granted to wife, being well educated lady, able bodied and can earn for herself and living separately from her husband from the more than last 5 years without sufficient reason.
Wife’s Claim Rejected.
- Surjit Kaur Vs. Gurnam Singh 2016(4) RCR (Criminal) 269"
- Monu Songra Vs. Pinki 2016 (4) RCR (Criminal) 804
- Poonam Vs. Mahender Kumar 2016(1) RCR (Criminal) 613
P & H High Court on 10.09.2018 held that Petitioners,
estranged wife and Baby, minor daughter of P.S. had filed a
petition under Section 125 Cr.P.C. against respondent. Vide
judgment dated 23.1.2017 passed by Judicial Magistrate Ist Class, Sirsa, the
petition was accepted and respondent was directed to pay maintenance to the
tune of Rs.2,500/- per month to petitioner No.1 and Rs.1,500/- per month to
petitioner No.2 from the date of filing petition, in addition to paying
Rs.15,000/- as litigation expenses to the petitioners.
The respondent challenged the said judgment by way of
filing a revision petition to the Court of Sessions, which was assigned to
learned Additional Sessions Judge, Sirsa, who vide judgment dated 6.4.2017
allowed the revision petition partly observing that petitioner No.1 is not entitled to any maintenance allowance from the revisionist and
litigation expenses of Rs.15,000/- awarded were reduced to Rs.7,500/-, whereas
maintenance awarded to minor petitioner No.2 was kept as intact.
Feeling dissatisfied with the said order, the
petitioners have approached the High Court by way of filing the instant petition
under Section 482 Cr.P.C., notice of which was given to respondent, who put in
appearance through counsel.
The Court heard learned counsel for the parties besides
going through the record.
Here relationship between the parties is admitted i.e.
petitioner No.1 getting married with respondent on 23.9.2007
and giving birth to petitioner No.2 from the loins of the respondent. It is
also not in dispute that the spouses are residing separately and Baby Riya is
in custody of her mother. As per the case of petitioners, petitioner No.1 had
left the matrimonial house on account of harassment and ill-treatment at the
hands of her husband, whereas this fact is being refuted by the respondent. The
trial Court on the basis of evidence adduced before it by both the parties and
in light of the facts and circumstances of the case has not given any
observation as to whether petitioner No.1 is residing
separately from her husband for or without any justifiable reason.
Section 125 Cr.P.C. deals with order of maintenance of
wife, children and parents.
Sub-Section 4 provides that no wife shall be entitled
to receive an allowance from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.
So it was necessary to determine as to whether
petitioner No.1 has been residing separately from her husband for or without
any sufficient reason, which aspect was certainly not looked into by the trial
Magistrate. Learned Additional Sessions Judge, Sirsa while hearing the revision
petition did look into that aspect. The relevant part of the judgment in that
regard is contained in paras No.7 to 9, which for ready reference are being
reproduced as under:
7. After hearing the rival contentions of both the
sides and perusing the lower court record it has come to light that in the
whole evidence adduced by the respondent No.1 there is no mention about the
earning of the revisionist rather simply allegations against the revisionist
and her parents regarding demand of dowry etc. were mentioned by the respondent
No.1 in her examination-in-chief. Further she admitted that the revisionist and
his parents are of labour class persons. During her cross-examination it has
been admitted by the respondent No.1 that she has passed the course of A.N.M.
It has been further admitted that her father is having a well built house and
is drawing a salary of Rs.25000/- per month and is an income-tax assessee. She
also stated that her father is maintaining her and her daughter properly and
there is no dispute with regard to their maintenance at her parental house.
Further during her cross-examination she admitted that she is residing at her
parental house since the last five years. She also refuted from her stand as
taken in the petition regarding remarrying of the revisionist with one Sonia.
From the bare perusal of the cross-examination it is very much crystal clear
that the father of the respondent No.1 is maintaining the respondent No.1 and
her daughter very well and there is no dispute regarding their maintenance.
This Court finds force in the case law cited by the learned counsel for the
revisionist titled as Surjit Kaur Vs. Gurnam Singh 2016(4) RCR (Criminal) 269,
in which it was held that:- "Criminal Procedure Code, 1973, Section
125-Old age of husband and wife-Wife living separately with her son since prior
to 1986-Claimed maintenance from husband in 2007 when he is in his late
eighties-having no sufficient funds even to maintain himself-Wife deserted or
living away from him without any reasonable cause-If she was able to maintain
herself for a long period of 21 years, it was for her to explain as to how she
lost her source of income suddenly, in the absence of which, she is not
entitled to claim maintenance from her husband without showing that he
neglected her-Mere an income of Rs.1800/- per month of husband cannot be
considered sufficient even to maintain himself." and the case law titled
as Monu Songra Vs. Pinki 2016 (4) RCR (Criminal) 804, in which it was held
that:- "Court will have to determine whether a qualified woman who can get
a job can sit idle and insist on maintenance Everyone has to earn for himself
or herself or at least make an effort and would not sit idle." Both the
aforesaid case law are fully applicable to the facts and circumstances in the
present case as from the bare perusal of the cross- examination itself very
much clear that respondent No.1 is having a diploma of A.N.M. and she is living
separately from her husband from the more than last 5 years and there was no
dispute with regard to her maintenance at her parental home. She has further
admitted that revisionist and his parents are doing the labour works. All these
facts convince this Court to take a lenient view in the matter of maintenance
qua the revisionist.
8. No doubt the intention of the legislation
incorporating section 125 Cr.P.C. is to avoid destitution and this provision
gives a right to a wife to claim maintenance from her husband, but at the same
time sub section (4) of section 125 Cr.P.C. postulate certain pre-conditions
upon the wife, to qualify while filing such petition against her husband. One
of these conditions is that if she has refused to live with her husband without
any sufficient reason,then she will not be entitled to receive any allowance.
9. Further the revisionist has taken a stand the it is
the respondent No.1 who used to left her matrimonial house and also refused to
live with the revisionist without any reasonable cause and excuse. To rebut
this stand no evidence was brought on record by the respondent No.1 before the
learned lower court. Hence this Court again finds force in the contentions
raised by the learned counsel for the revisionist and also finds force in the
case law titled as Poonam Vs. Mahender Kumar 2016(1) RCR (Criminal) 613 in
which it was held by Hon'ble Punjab & Haryana High Court that:-
"Criminal Procedure Code,1973, Section 125- Maintenance-Wife left
matrimonial home leaving behind her Husband and two children without any
reason- Wife claiming maintenance under Section 125 Cr.P.C.- Petition
dismissed-Held, Wife who has deserted her husband without any reason is not
entitled to maintenance." The ratio of this judgment is fully applicable to
the facts and circumstances of the present case.
The revisional Court has observed that petitioner No.1
has not taken stand that she is unable to maintain herself and she has not
described earning of her husband. Thus finding that when a woman herself without
giving sufficient reason that she is unable to maintain herself and has not
sought any relief/claim with regard to her maintenance, then a Court cannot
give relief to that person.
Learned Additional Sessions Judge, Sirsa has observed
that respondent - husband belongs to labour class and maintenance allowance of
Rs.2,500/- per month has wrongly been granted to petitioner No.1 by the trial
Court while petitioner No.1 is a well educated lady, who is able bodied and can
earn for herself, resultantly claim of petitioner No.1 was rejected and
litigation expenses were reduced from Rs.15,000/- to Rs.7,500/-.
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