Beruflich Dokumente
Kultur Dokumente
CHATRAD FOR
SRI
MAHESH
2
ASIDE THE ORDER DATED 21.11.2012 PASSED BY THE
SESSIONS
JUDGE
(FAST
TRACK)
HAVERI,
IN
CRL.RP.NO.131/2010 AND ETC.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The respondent wife has lodged a petition under
Section 125 of Code of Criminal Procedure, 1973 (hereinafter
referred to as Cr.P.C. for brevity) on the file of J.M.F.C. 1st
Court, Savanur, seeking for maintenance from petitioner
husband.
The
trial Court
entire
3
passed by learned Magistrate and dismissed the petition
under Section 125(1) of Cr.P.C. by exercising the powers
under Section 397 of Cr.P.C.
order, the wife has preferred this revision petition before this
Court.
2.
husband before the trial Court, it can be seen that the only
ground taken by husband is that, a divorce petition was filed
by husband against the wife in M.C. No.7/2006.
The
It is the
4
AIR 2000 Supreme Court 952 between Rohtash
Singh v. Smt. Ramendri and others.
3.
that
Whether the divorced wife is entitled for
maintenance though the decree of divorce is
granted to the husband on the ground of
desertion by wife?
5
If demand of dowry and cruelty by
husband is not supported by evidence on record
and reasons given for her ill-treatment are not
existed and if wife leaves the matrimonial home
without any justifiable ground then she is not
entitled for any maintenance.
1995 Crl.L.J. 1187 (Calcutta High Court) between
Rabindranath Roy.
The Calcutta High Court has held that
If the decree of divorce is passed on the
ground of desertion, then wife is not entitled for
maintenance.
1981 Crl. L. J. 1467 (Punjab & Haryana High
Court) between Teja Singh v. Smt. Chhoto.
The Civil Court had clearly found that it
was she who had deserted her husband that
means it was she who had been refusing to live
with him. Such being the case by virtue of subsection (4) of Section 125 of the Code of Criminal
Procedure, she would not be entitled to any
maintenance.
6
6. On perusal of the ruling reported in
AIR (SC) - 2003 3174 between Deb Narayan Haider
v. Anushree Haider
7. In the above judgment the Honble Supreme Court
has observed at paragraph 2 that, the husband and wife got
married on 24.02.1985 and out of the wedlock a son was
born to them.
7
to Section 125(4) of Cr.P.C. she is not entitled for
maintenance. In that particular case the status of wife, after
divorce on her desertion, is not at all discussed under
section 125(4) of Cr.P.C.
8
10. If the above said provision is applied to this case, it
is not the case of husband that the wife is living in adultery
nor that husband and wife have been living separately by
mutual consent, during the subsistence of their marriage. It
is the case of husband that after divorce the wife has been
living separately, without any sufficient reason she has
refused to live with her husband.
9
The Honble Supreme Court at paragraphs 3 and 4
observed as under :
Under this provision, a wife is not entitled
to
any
Maintenance
Allowance
from
her
adultery.
Now,
adultery
is
the
sexual
subsistence
of
marriage
between
the
10
cannot claim Maintenance Allowance under
Section 125 of the Code of Criminal Procedure.
any
sufficient
reason.
This
also
refuse
"Sufficient
to
reasons"
live
with
have
her
been
husband.
interpreted
11
wife against whom a decree for divorce has been
passed on account of her deserting the husband
can claim Maintenance Allowance under Section
125, Cr.P.C. and how far can the plea of
desertion be treated to be an effective plea in
support of the husband's refusal to pay her the
Maintenance Allowance.
(emphasis supplied)
11. The Honble Supreme Court at paragraph 9A has
extracted the observations made by its earlier decision in AIR 1978 SC 1807 between Ramesh Chander
Kaushal v. Mrs. Veena Kaushal.
This provision is a measure of social
justice and specially enacted to protect women
and children and falls within the constitutional
sweep of Article 15(3) reinforced by Article 39.
We have no doubt that sections of statutes
calling for construction by
Courts
are not
women
and
children
must
inform
12
So viewed it is possible to be selective in picking
out that interpretation out of two alternatives
which advances the cause - the cause of the
derelicts.
9A. Claim for maintenance under the first
part of Section 125, Cr.P.C. is based on the
subsistence
of
marriage
while
claim
for
remarried,
Maintenance
she
will
Allowance.
The
be
entitled
Calcutta
to
High
13
these decisions as they represent the correct
legal position.
then
only
the
husband
is
absolved
from
14
maintaining his divorced wife. In view of the above facts and
circumstances, I am of the opinion that the learned Sessions
Judge has committed a serious error in not looking into the
judgment of Honble Supreme Court in detail and finding
out what exactly the law has laid down by the Honble
Supreme Court.
15
The order passed by Judicial Magistrate
First Class, Savanur in Crl. Misc. No.61/2006
dated 15.07.2010 is hereby restored.
A sum of Rs.5,000/- deposited towards
litigation expenses before this Court is permitted
to be withdrawn by revision petitioner wife.
SD/JUDGE
hnm/