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2004 DIGILAW 436 (PNJ)

Birwati v. Dharam Singh

2004-04-07

V.M.JAIN

body2004
JUDGMENT V.M. Jain, J. - This is a petition under Section 482 Criminal Procedure Code filed by the wife against the husband challenging the orders passed by the Courts below, whereby her petition under Section 125 Criminal Procedure Code seeking the grant of maintenance was dismissed by the Additional Chief Judicial Magistrate and the revision petition filed by her was dismissed by the Additional Session Judge, Gurgaon, upholding the order of the learned Magistrate. 2. The facts in brief are that Smt. Birwati (wife) filed a petition under Section 125 Criminal Procedure Code against her husband Dharam Singh, seeking the grant of maintenance to her on the ground that she was the legally wedded wife of Dharam Singh. She claimed Rs. 1000/- per month as maintenance. The said petition was contested by Dharam Singh husband on various grounds including the plea that Smt. Birwati herself had left the matrimonial home in December, 1986, and the petition under Section 9 of the Hindu Marriage Act filed by him seeking restitution of the conjugal rights had since been decreed in his favour and as such she was not entitled to maintenance. Both the parties led evidence. After hearing both sides and perusing the record, the learned Magistrate dismissed the petition under Section 125 Criminal Procedure Code holding that the wife was not entitled to any maintenance since she had herself left the matrimonial home without any reasonable excuse and the husband had already obtained a decree for restitution of conjugal rights. Reliance was placed on the law laid down by this Court in the case of Piara Singh v. Satwant Kaur and Anr., 1998(2) C.L.R. 700. Thereupon, the wife filed a revision petition in the Sessions Judge against the aforesaid order of the learned Chief Judicial Magistrate. After hearing both sides and perusing the record, the learned Additional Sessions Judge dismissing the revision petition again placing reliance on Piara Singhs case (supra). Aggrieved against the same, the wife filed the present petition under Section 482 Criminal Procedure Code in this Court. 3. At the time when the case came up for hearing before this Court on 7.5.1997, it was agreed by the counsel appearing for both the parties that this petition be heard along with FAO No. 119-M of 1990 arising out of a matrimonial dispute between the parties. 3. At the time when the case came up for hearing before this Court on 7.5.1997, it was agreed by the counsel appearing for both the parties that this petition be heard along with FAO No. 119-M of 1990 arising out of a matrimonial dispute between the parties. It was under these circumstances that the present petition has been listed for hearing before me along with aforesaid FAO No. 119-M of 1990. During the course of arguments in the aforesaid FAO, the learned counsel appearing for the respondent husband had submitted before me that during the pendency of the present petition in this Court, a decree of divorce has since been passed in favour of the husband and against the wife vide judgment and decree dated 12.2.1992. A copy of the said judgment and decree was also produced in the said FAO. Vide separate order, the said FAO has been dismissed as having become infructuous in view of the subsequent judgment and decree for divorce passed in favour of the husband and against the wife and the said decree having become final. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The petition under Section 125 Criminal Procedure Code was primarily dismissed by the Courts below on the ground that the petitioner wife had left the matrimonial home of her own accord and a decree for restitution of conjugal rights had been passed in favour of the husband and against the wife. The application for setting aside the ex parte decree for restitution of conjugal rights had been dismissed by the learned Additional District Judge and the appeal bearing No.119-M of 1990 filed by the wife against the said order of the Additional District Judge has also been dismissed by me vide separate order of even date passed in FAO No. 119-M of 1990. Furthermore, while dismissing the appeal, I had also kept in view the judgment and decree dated 12.2.1992 passed by the Additional District Judge, whereby a decree for divorce has since been passed in favour of the husband and against the wife and the said decree for divorce has already become final. Furthermore, while dismissing the appeal, I had also kept in view the judgment and decree dated 12.2.1992 passed by the Additional District Judge, whereby a decree for divorce has since been passed in favour of the husband and against the wife and the said decree for divorce has already become final. A perusal of the said judgment and decree dated 12.2.1992 would show that the learned Additional District Judge had granted the decree for divorce not only on the ground that a decree for restitution of conjugal rights had already been passed and inspite of that the parties had not lived together as husband and wife but the Court had also given a categorical finding that the wife had deserted the husband without any reasonable excuse and as such the husband was entitled to a decree for divorce. In the light of the upholding the decree for restitution of conjugal rights and the finding given by the learned Additional District Judge, while granting the decree for divorce in favour of the husband and against the wife in the subsequent petition for divorce, in my opinion, the petitioner wife would not be entitled to claim any maintenance, in view of the provisions of Sections 125(4) Criminal Procedure Code, wherein it has been provided that no wife shall be entitled to receive any allowance for the maintenance from her husband, under the said section, if without any sufficient cause, she had refused to live with her husband. The aforesaid findings having been given in the petition under Section 9 of the Hindu Marriage Act as also in the divorce petition under Section 13 of the Hindu Marriage Act, in my opinion, the petitioner-wife would not be entitled to claim any maintenance from the respondent-husband under Section 125 Criminal Procedure Code 6. In view of the above, in my opinion, there is no illegality in the orders passed by the Courts below, which may require interference by this Court in the present petition under Section 482 Criminal Procedure Code 7. The authorities Babulal v. Sunita, 1987(1) Recent Criminal Reports 505 (M.P.) and Mohd. In view of the above, in my opinion, there is no illegality in the orders passed by the Courts below, which may require interference by this Court in the present petition under Section 482 Criminal Procedure Code 7. The authorities Babulal v. Sunita, 1987(1) Recent Criminal Reports 505 (M.P.) and Mohd. Shakeel v. Smt. Shaheena and others, 1987(1) Recent Criminal Reports 569 (Delhi), relied upon by the learned counsel for the petitioner- wife, in my opinion, would have no application to the facts of the present case in view of the law laid down by this Court in Piara Singhs case (supra). In view of the above, finding no merit in this petition, the same is hereby dismissed. Petition dismissed.