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Madhya Pradesh High Court · body

2007 DIGILAW 659 (MP)

Prakash Singh v. Kala Bai

2007-06-28

SUSHMA SHRIVASTAVA

body2007
ORDER 1. Feeling aggrieved by the order dated 20.1.2004 passed by Second Additional Sessions Judge, Raisen in Criminal Revision No. 6/04, applicant/husband has preferred this revision. 2. By the impugned order revision filed by the non-applicant before Sessions Court, Raisen against the order dated 7.3.2002 passed by JMFC Raisen in Criminal MJC No. 42/02 dismissing her application under section 125 of CrPC, has been allowed and the applicant has been directed to pay a sum of Rs. 700/- per month as maintenance allowance under section 125 of CrPC to the non-applicant. 3. Non-applicant filed an application under section 125 of CrPC against the applicant before the Court of JMFC Raisen on 15.10.1999 claiming maintenance amount of Rs. 3,000/- per month from the applicant. According to non-applicant, she was married to the applicant three years back and soon after the marriage applicant used to demand dowry from the father of his wife and insisted for giving a motorcycle and an amount of Rs. 70,000/- for purchasing a house, on failure whereof' applicant began to harass the non-applicant. On 2.9.1998, applicant left the non-applicant at her father's house at village 'Semra' and did not call her back. On 28.4.1999 the applicant performed a second marriage with a woman named Vaijanti Bai, though the non-applicant was ready' to live with applicant. Non-applicant had no means to maintain herself, while the applicant having sufficient means and income had neglected to maintain her. Applicant, therefore, being unable to maintain herself filed an application for grant of maintenance under section 125 of CrPC before JMFC Raisen. 4. The application for grant of maintenance was opposed by the applicant. In the written reply filed by him, though it was not disputed that non-applicant was married to him, it was alleged that the non-applicant did not want to live with the applicant and her father was asking for an amount of Rs. 50,000/- for sending her to the applicant, which constrained him to move for issue of search warrant by the SDM Vidisha for calling her back. Non-applicant on coming back to the applicant after issue of search warrant, again left her matrimonial home and refused to live with the applicant. Consequently, the applicant had to file suit for divorce against the non-applicant and after decree of divorce, applicant had performed a second marriage. According to applicant, non-applicant was herself earning Rs. Non-applicant on coming back to the applicant after issue of search warrant, again left her matrimonial home and refused to live with the applicant. Consequently, the applicant had to file suit for divorce against the non-applicant and after decree of divorce, applicant had performed a second marriage. According to applicant, non-applicant was herself earning Rs. 1,000/- per month by doing sewing work, while the applicant had no sufficient means and also had a family to maintain. The application for maintenance was filed by the non-applicant with a view to harass the applicant, which was liable to be dismissed. 5. The JMFC Raisen, after recording and considering the evidence of both the parties, dismissed the application filed by the non-applicant under section 125 of CRPC vide order dated 7.3.2002 mainly on the ground that the non-applicant was living separately from her husband without any sufficient reason, which had led to the decree of divorce, therefore, she was not entitled to maintenance. 6. Being aggrieved by the aforesaid order dated 7.3.2002 passed by JMFC Raisen, non-applicant preferred a criminal revision before the Sessions Court, which was allowed vide impugned order dated 20.1.2004 passed by Second Additional Sessions Judge Raisen in Criminal Revision No. 6/04 directing the applicant to pay a sum of Rs. 700/- as maintenance amount to the non-applicant from the date of order passed by JMFC Raisen in MJC No. 42/02, which has led to this revision by the applicant. 7. Learned counsel for the applicant submitted that the lower revisional Court gravely erred in law and facts in allowing the revision and granting maintenance to the non-applicant without assessing the evidence on record in proper perspective. Learned counsel for the applicant also submitted that the lower revisional Court failed to appreciate that non-applicant was not willing to live with the applicant and had resorted to all possible means to withdraw from his company and the applicant had to take recourse to issue of search warrant against the non-applicant by SDM Vidisha and he was also constrained to file a suit for divorce against the applicant. Learned counsel for the applicant further submitted that the Court below failed to consider that the non-applicant was earning herself by working as a labourer, while applicant had no sufficient means and had a family to support. 8. Learned counsel for the applicant further submitted that the Court below failed to consider that the non-applicant was earning herself by working as a labourer, while applicant had no sufficient means and had a family to support. 8. The learned counsel for the non-applicant, on the other hand, submitted that the applicant had left the non-applicant at her father's place and she was unable to maintain herself and the applicant had obtained an ex parte decree for divorce and also performed a second marriage, therefore, she was entitled to maintenance and the impugned order was justified. 9. Impugned order and records of the lower Courts perused. 10. It was not disputed that non-applicant was married to the applicant and the applicant had obtained a decree of divorce against the non-applicant and had also performed a second marriage. Certified copies of the judgment and decree of divorce obtained by the applicant against the non-applicant (EX. NA-l and Ex. NA-2) are also placed on record by the applicant himself, which indicate that the applicant had obtained a decree of divorce against the non-applicant on the ground of her cruelty on 17.9.1998. Thus, the non-applicant was admittedly a divorced wife. 11. The main contention raised by the learned counsel for the applicant was that the evidence on record revealed that the non-applicant was herself living separately without any sufficient reason, which also led to an issue of search warrant and as such she was not entitled to maintenance under section 125 (4) of CrPC. 12. The apex Court in the case of Rohtash Singh v. Ramendri (Smt.) and others reported in [ (2000) 3 SCC 180 ] has held that all the circumstances contemplated by sub-section 4 of section 125 of CrPC presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end and the wife is under no obligation to live with her husband after the decree of divorce is passed, whereas a divorced wife is entitle to maintenance under section 125 of CrPC in view of explanation (b) attached to section 125 of CrPC, if a divorced wife is unable to maintain herself and she has not remarried. It would be profitable to quote the following observations made by the apex Court in the case of Rohtash Singh v. Ramendri (supra) : . It would be profitable to quote the following observations made by the apex Court in the case of Rohtash Singh v. Ramendri (supra) : . "A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her." 13. Now, applicant had admittedly obtained a decree of divorce against the non-applicant on 17.9.1998 and the non-applicant had filed the application for maintenance under section 125 of CrPC, obviously as a divorced wife, on 15.10.1999. It is also worthwhile to mention that the decree for divorce was obtained on the ground of cruelty and not on the ground of desertion by the non-applicant. Therefore, the provisions of section 125 (4) of CrPC became inapplicable to the case of the non-applicant in view of law laid down by the apex Court. 14. There has been a finding of fact of the lower revisional Court after re-appreciation of the evidence that non-applicant was unable to maintain herself, while the applicant had sufficient means and source of income. The applicant himself nowhere stated in his evidence that the non-applicant was earning herself and was able to maintain herself. The findings of the lower revisional Court do not appear to be erroneous or against the evidence on record. 15. In the wake of aforesaid and upon due consideration of facts and circumstances of the case, as emerging from the evidence of both the parties, the impugned order of the lower revisional Court granting maintenance amount of Rs. 700/- (Seven hundred) per month to the non-applicant does not suffer from any factual or legal infirmity or any jurisdictional error. 16. Impugned order, therefore, calls for no interference. Revision fails and is dismissed.