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Andhra High Court · body

2009 DIGILAW 189 (AP)

K. Anjaiah Goud v. State of A. P.

2009-03-20

K.C.BHANU

body2009
ORDER This Criminal Petition is filed under Section 482 Cr.P.C. to quash the order dated 29-10-2008 passed in Crl.R.P.No. 380f2008 on the file of the IV Additional District and Sessions Judge (FTC), Mahabubnagar, wherein the order under M.C.No. 7 of 2007, dated 20-6-2008, on the file of the Judicial Magistrate of First Class at Kodangal, was set aside. 2. For better appreciation of facts, the parties are referred to as they are arrayed in M.C.No. 7 of 2007. 3. The brief facts that are necessary for disposal of the present petition are as follows: The petitioner, who is the respondent herein, filed a petition under Section 125 Cr.P.C. stating that she is legally wedded wife of the respondent and their marriage took place about 25 years back. After the marriage, they lived happily for a period of 5 years. Thereafter, the respondent started ill-treating and harassing the petitioner and that the respondent used to beat the petitioner without any cause and he forced her to leave the company. Later, she filed a petition before the Subordinate Court under Hindu Marriage Act for reconciliation. The petitioner agreed to join with the respondent, but again the respondent used to beat her and driven out from the house. Further, the respondent marriage another woman while subsisting first marriage and living with his 2nd wife and that the respondent is doing business having a flour mill and getting Rs. 10,000/- per month and that the petitioner was unable to maintain herself. Hence, the present petition. 4. The respondent filed a counter-affidavit admitting their marriage but denied that the petitioner lived with him for five years. It is stated that the petitioner lived with him for nine months only and thereafter, she left his company in the year 1981 and did not join. Therefore, he filed a petition for restitution of conjugal rights and during the reconciliation proceedings, she agreed to join but failed to join. In the year 1984, the respondent filed a petition in O.P.No. 175 of 1984 before the Subordinate Court, Mahabubnagar, for divorce. The Court granted divorce on 03-03-1986 and after lapse of 23 years, she filed the present petition under Section 125(4) Cr.P.C. The woman who willfully or voluntarily withdrew from the conjugal society is not entitled for maintenance. Therefore, he prays to dismiss the petition. 5. On behalf of the petitioner, P.Ws. The Court granted divorce on 03-03-1986 and after lapse of 23 years, she filed the present petition under Section 125(4) Cr.P.C. The woman who willfully or voluntarily withdrew from the conjugal society is not entitled for maintenance. Therefore, he prays to dismiss the petition. 5. On behalf of the petitioner, P.Ws. 1 to 3 were examined, but no documents were marked. On be half of the respondent, RWs. 1 to 3 were examined and marked Ex. R-1. 6. The trial Court, after considering the evidence on record, opined that P.W. 1 and RW. 1 were living separately after divorce in the year 1986 and after lapse of 22 years, the present application is filed and as there was no willful negligent or refusal on the part of the respondent, dismissed the maintenance petition. Aggrieved by the same, the petitioner filed revision before the IV Additional District and Session Judge (FTC), Mahabubnagar, in Crl.R.P.No. 38 of 2008. The revisional Court, by its order, allowing the said revision held that the petitioner is entitled for maintenance and that the petitioner was not in a position to maintain herself and accordingly, directed the husband to pay maintenance at Rs. 1000/- per month to the petitioner towards maintenance from the date of the order. Challenging the same the present Criminal Petition is filed. 7. The learned counsel for the petitioner husband has contended that under Section 125(4) Cr.P.C. 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 and the trial Court gave finding that the respondent-wife herself deserted the petitioner-husband and further the finding of the Subordinate Judge that the respondent-wife stayed away from the petitioner-husband without any valid grounds itself established that she has no intention to live with her husband and therefore, he prays to set aside the impugned order. 8. On the other hand, the learned counsel for the respondent-wife contended that Section 125(4) Cr.P.C. applies only to the wife and does not apply to the divorce wife. The finding of the Subordinate Judge has no relevance. In view of the elaborate consideration of evidence as well as legal aspects, the revision Court rightly ordered maintenance. Therefore, there are no grounds to interfere with the same. 9. The finding of the Subordinate Judge has no relevance. In view of the elaborate consideration of evidence as well as legal aspects, the revision Court rightly ordered maintenance. Therefore, there are no grounds to interfere with the same. 9. The inherent powers under Section 482 Cr.P.C. can be exercise; (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. Those statutory powers have to be exercised sparingly in the rarest of rare cases. The inherent power of the Court is under fined and indefinable. Unless the findings are perverse or findings are not based upon the proper appreciation of evidence on record, the inherent powers cannot be exercised. 10. The learned counsel for the petitioner husband relied upon a decision report in Vitthal Hiraji Jadhav v. Harnabai Vitthal Jadhav and another 2003 ALT (Crl.) 81 (NOC) (Bom.), wherein, it was held: "In the instant case, the learned Magistrate lost sight of the provisions of Section 125(4), which provide that, no wife shall be entitled to receive an alimony from her husband under this section, if she is living in adultery, or that without sufficient reason refuses to live with her husband, or if, they are living separately by mutual consent." The above case has no application because that is the case where the wife without sufficient reason, refused to live with her husband. 11. He further contended that in the order passed in O.P.No. 175 of 1984, on the file of Subordinate Judge, Mahabubnagar, dated 03-03-1986, it was held that the conduct of the respondent (wife) in staying away from the petitioner (husband) without any cause, since January 1981 , established that the respondent is purposefully staying away from her husband and that she has no intention to live with her husband and hence. in such circumstances, it was ordered that the respondent is guilty of willful desertion. It is further held that there was no hope that she would join in future. Accordingly, the marriage was dissolved. 12. in such circumstances, it was ordered that the respondent is guilty of willful desertion. It is further held that there was no hope that she would join in future. Accordingly, the marriage was dissolved. 12. On the other hand, the learned counsel for the respondent-wife relied upon several decisions reported in D. Lakshmana Rao v. D. Kamala Bai1996 (1 )ALT (Crl.)29 (A.P.) = 1996 (1) ALD 334 wherein, it was held: "It is therefore, clear that even a divorced woman who has been divorced on the ground that she had deserted the husband is entitled for maintenance under subsection (1) of Section 125 Cr.P.C." In the above said decision, the decision of the Supreme Court report in Vanamala v. H.M. Ranganatha Bhatta 1995 (3)ALD (SCSN) 17 was quoted, wherein, it was held that in the context, therefore, sub-section (4) of Section 125 does not apply to the case of a women who has been divorced or who has obtained a decree for divorce. In Gurmit Kaur v. Surjit Singh Alilas Jeet Singh 1996 SC (1 ) 39 wherein, it was held: "The concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. In other words, during the subsistence of the marriage, if the parties agree to live separately by mutual consent, no party is entitled to lay and claim for maintenance from the other party." In M. Ramakrishna Reddy v. T. Jayamma 1991 (3) ALT 637 it was held: "10. . . . . In other words, during the subsistence of the marriage, if the parties agree to live separately by mutual consent, no party is entitled to lay and claim for maintenance from the other party." In M. Ramakrishna Reddy v. T. Jayamma 1991 (3) ALT 637 it was held: "10. . . . . .It is further held that the Magistrate is not required to examine whether the conduct of the wife in initially leaving the house was just or not, that the conduct of the wife at the time of leaving the house is wholly irrelevant and that the Magistrate must concentrate on the facts and circumstances existing on the date of passing order on application filed under Section 125 of the Code." Similarly, in Maddala Nagaratnam v. Maddala Ranga Rao 2008 (3) ALT (Crl.) 290 it was held: "Section 125 of Cr.P.C. providesa swift and cheap remedy against any person, who despite means, neglects or refuses to maintain his wife, which includes a women after divorce who has not remarried, his minor or major child, either legitimate or illegitimate, his minor or major child, either legitimate or illegitimate, his father or mother when they are unable to maintain themselves. The primary object of the Section is to prevent starvation of vagrancy." In L. Srinivasulu Reddy v. L. Ramalakshumma 1996 (2)ALT (Crl.) 111 it was held: "In the context, therefore, subsection (4 ) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce." In D. Lakshmana Rao v. D. Kamala Bai (supra), it was held: "It is, therefore, clear that even a divorced woman who has been divorced on the ground that she had deserted the husband is entitled for maintenance under subsection (1) of Section 125 Cr.P.C." In Rohtash Singh v. Ramendri AIR 2000 (SC) 952 = 2000 (2) ALT 2.2 (DN SC) it was held: "9-A. Claim for maintenance under the first part of Section 125, Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to. Sub-section (1) of Section 125, Cr.P.C. lf the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. Sub-section (1) of Section 125, Cr.P.C. lf the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125, Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See Sukumar Dhibar v. Smt. Anjali Dasi : 1983 Cri.L.J. 36 (Cal). The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position. 13. From the above decision, it is clear that Section 125(4) Cr.P.C. does not apply to the case of woman who has been divorced. Similarly, the finding of the Subordinate Court that the wife deserted her husband and on that basis decree for divorce was passed cannot be a ground to reject the claim of the maintenance to the divorced wife. Therefore, the contention of the learned counsel for the petitioner-husband is untenable. The decision relied upon by the learned counsel for the petitioner-husband has no application to the present facts of the case. Even otherwise, in view of the decision of the Apex Court in Rohtash Singh 's case (supra), there is no bar for a divorced wife to claim maintenance even though husband obtained decree of divorce on the ground of desertion. 14. The trial Court disallowed the claim of the wife on the ground that wife had no intention to live with her husband. The revisional Court held that the question of neglect or refusal to live with her husband does not arise because the husband already obtained a decree of divorce. Placing reliance on Rohtash Singh's case (supra), the revisional Court granted maintenance. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. If these two grounds have been established, then the wife is entitled for maintenance. 15. The evidence of P.W. 1 would go to show that she has no means to maintain herself and still she was not remarried. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. If these two grounds have been established, then the wife is entitled for maintenance. 15. The evidence of P.W. 1 would go to show that she has no means to maintain herself and still she was not remarried. Even R.W. 1 did not state that the petitioner was able to maintain herself. The evidence adduced on behalf of the respondent before the trial Court is that for about six months the wife and husband lived together and thereafter, the husband obtained a divorce. On the ground that the evidence of petitioner is not disclosed about the willful negligent or refusal, the petition was dismissed by the trial Court. 16. All these aspects are not necessary but the petitioner has to establish that the respondent is doing business besides doing agriculture. No doubt, the respondent has stated that he is doing coolly work. But considering the evidence on record, the revisional Court granted Rs. 1,000/- per month to the petitioner towards maintenance. The order under impugned does not suffer from any illegalities or any infirmities so as to call for interference from this Court and the maintenance granted by the revisional Court cannot be said to be unjust and unreasonable. There are no merits in the Criminal Petition and the same is liable to be dismissed. 17. Accordingly, the Criminal Petition is dismissed.