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2007 DIGILAW 3505 (MAD)

Mohammed Asan v. Asiabibi

2007-11-06

S.ASHOK KUMAR

body2007
Judgment :- Aggrieved over the order of the learned Additional District and Sessions (Fast Track Court No.III), Coimbatore, granting maintenance to the respondent, the petitioner has filed the present criminal original petition. 2. The brief facts of the case are as follows: The petitioner and the respondent got married on 19.08.1987 and dispute arose between them in March 1988 and thereafter on 01.0.1988, a Panchayat was held in the Jamath and she was taken back by the petitioner-husband. Thereafter, the petitioner-husband said to have beaten the respondent-wife and did not provide her sufficient food and made her starve and hence, again she went again to her mothers house. The petitioner has married another woman who has got four children through her. Therefore, the respondent-wife filed an application in M.C.No.1 of 2002 before the learned Judicial Magistrate No.2, Pollachi, claiming maintenance of Rs.500/-per month who in turn by order dated 19.02.2003 awarded maintenance at Rs.750/-per month and also a sum of Rs.1500/- towards litigation expenses. Aggrieved over the said order, the petitioner-husband filed Crl.R.P.No.43 of 2003 before the Additional District and Sessions Judge (Fast Track Court No.III), Coimbatore and the learned Judge by order dated 310. 20203 dismissed the said revision with modification that the petitioner should pay a sum of Rs.500/- per month towards maintenance to the respondent. Aggrieved over the said order the petitioner-husband is before this Court invoking Section 482 of code of Criminal Procedure. 3. Mr. A.M.Rahmat Ali, learned counsel for the petitioner would contend that the grounds raised before the trial Court and revision Court, were not considered by the said Courts. The first ground is that only after getting permission from the respondent-wife, the petitioner married another woman and the second ground is that the petitioner has pronounced Talaq on the respondent and therefore, the respondent is not entitled for maintenance. He would further contend that there is no justification for the respondent to live separately from her husband without any reason. 4. Per contra, Mr.N.M.Manokaran, learned counsel for the respondent-wife would contend that no woman would live with her husband when he has contracted second marriage and the refusal of the wife, in the above circumstance, is justifiable. He would further contend that there is no justification for the respondent to live separately from her husband without any reason. 4. Per contra, Mr.N.M.Manokaran, learned counsel for the respondent-wife would contend that no woman would live with her husband when he has contracted second marriage and the refusal of the wife, in the above circumstance, is justifiable. To support the said contention, learned counsel relied on the judgment of the Honble Supreme Court reported in AIR 1999 SC 2374 (Rajathi v. C. Ganesan) and paragraph 7 reads as follows: "In the present case wife alleged that her husband had contracted a second marriage on January 4, 1990. She filed a complaint, for an offence under Section 494 of the Indian Penal Code. It is stated that the complaint was dismissed and husband was acquitted. High Court took its circumstance against the wife and adversely commented on her refusal to live with her husband. High Court, it would appear, lost sight of the fact how it would be difficult for the wife to prove the second marriage. This Court has held that to prove the second marriage as a fact essential ceremonies constituting it must be proved and if second marriage is not proved to have been validly performed by observing essential ceremonies and customs in the community conviction under Section 494IPC ought not to be made. The fact, however, remains in the present case that the husband is living with another woman. Proviso to sub Section (3) would squarely apply and justify refusal of the wife to live with her husband. There can be however, other grounds for the wife to refuse to live with her husband, e.g., if she is subjected to cruelty by him. It was a case where the husband neglected or refused to maintain his wife. High Court did not consider the question if husband was having sufficient means. If rather unnecessarily put the burden on the wife to prove that she was unable to maintain herself. The words "unable to maintain herself" would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 is enacted on the premise that it is obligation of the husband to maintain his wife, children and parents. Section 125 is enacted on the premise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. High Court also observed that the wife did not plead as t since when she was living separately. This is not quite a relevant consideration. Even though wife was unable to prove that husband has remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise". 5. The other contention of the counsel for the petitioner that the respondent has permitted for second marriage, is not proved by any evidence. Yet another contention of the learned counsel for the petitioner is that the petitioner has divorced his wife the respondent after pronouncing Talaq. But the said fact is not mentioned in the counter filed by the petitioner before the Court below in M.C.No.1 of 2002. Further, being a divorced woman, the respondent is entitled for maintenance and the Supreme Court in the judgment reported in (2007) 2 MLJ (Crl.) 829 (SC) (Iqbal Bano v. State of Uttar Pradesh and another) has held as follows: "Proceedings under Section 125 Cr.P.C, are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and others AIR 2994 SC 2123 : 2004 (5) SCC 196 : (2004) MLJ (Crl.) 625, it was held that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows: "14. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and others AIR 2994 SC 2123 : 2004 (5) SCC 196 : (2004) MLJ (Crl.) 625, it was held that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows: "14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where he husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives." 6. Thus, looked at from any angle, the contentions raised by the learned counsel for the petitioner are not sustainable and the petitioner is liable to pay maintenance to his wife, the respondent. I do not find any reason to interfere with the order of the Courts below and hence, this criminal original petition is dismissed. Consequently, connected Crl.M.P. is also dismissed.