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Uttarakhand High Court · body

2009 DIGILAW 592 (UTT)

GANESH SINGH NAGARKOTI v. state OF UTTARAKHAND

2009-12-02

ALOK SINGH

body2009
JUDGMENT Mr. B.D. Upadhyay, learned counsel for the applicant/petitioner. 2. Mr. Prabhakar Joshi, learned Brief Holder for the State of Uttarakhand/respondent No. 1. 3. Mr. U.S. Kalakoti learned counsel for the respondent no. 2. 4. Heard learned counsel for the parties and with the consent of both the parties, present petition is being heard and decided finally today. 5. This petition under section 482 of Cr.P.C. is filed by the husband challenging the order of learned Magistrate dated 13.01.2005 directing the husband to pay maintenance @ Rs. 2000/- per month to the wife and Rs. 3000/- per month for the son – Arun Kumar. Revisional Court’s order dated 03.03.2005 dismissing the revision is also being assailed in the present petition. 6. Brief facts of the present case are that wife – respondent no. 2 herein filed application under section 125 of Cr.P.C. in the court of Judicial Magistrate, Bageshwar against the husband (petitioner herein) claiming maintenance Rs. 2000/- per month for herself and Rs. 3000/- per month for minor son Arun Kumar. Learned Magistrate vide impugned order dated 13.01.2005 allowed the application of wife in toto. Revision against the order of Magistrate is also dismissed vide impugned order dated 13.01.2005. 7. This is an admitted fact between the parties that Civil Judge (SD), Bageshwar vide order dated 31.12.2003 decreed the suit of the husband (petitioner herein) against the wife (respondent herein) for restitution of conjugal rights under section 9 of Hindu Marriage Act. 8. I have carefully perused the judgment passed by learned Civil Judge in O.S. No. 14 of 2002 under section 9 of Hindu Marriage Act. Learned Civil Judge has recorded finding of fact that wife could not prove cruel behaviour of the husband justifying reasonable excuse for withdrawal from the society of the husband. 9. Sub Section (4) and (5) of Section 125 of Cr.P.C. reads thus. “(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] 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. “(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] 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. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 10. From perusal sub section 4 and 5 of Section 125 of Cr.P.C. it is thus clear that no wife shall be entitled for the maintenance if she has no reason to live separately from husband or she refuses to live with her husband without any sufficient reasonable excuse. Sub Section 4 and 5 of Section 125 of Cr.P.C. creates absolute bar in granting maintenance. In both the sub sections (supra) the word “shall” is used. 11. Thus, it can safely be held if wife is living separately without any reasonable excuse she shall not be entitled for any maintenance from the husband. 12. Admittedly, in the present matter there is valid decree in favour of the husband passed in a suit, filed under section 9 of Hindu Marriage Act, hence, there can be no valid reasonable excuse with the respondent wife to live separately from the husband. 13. In view of the above findings I am not inclined to go into the question raised by Mr. B.D. Updadhyay, learned counsel for the petitioner that wife/respondent no. 2 is working as LIC Agent and is Income Tax payee. 14. It is further admitted to both the parties that now minor son – Arun Kumar is living with petitioner and is not living with her mother (respondent). This is also admitted that now petitioner is looking after son – Arun Kumar and bearing all the expenses towards livelihood, education and upbringing. 15. In view of the above discussion impugned judgment passed by learned Magistrate dated 13.01.2005 as well as judgment/order passed by Revisional Court/Sessions Judge dated 03.03.2005 cannot be sustained in the eyes of law. Consequently present petition deserve to be allowed. 16. Hence, present petition is allowed. 17. 15. In view of the above discussion impugned judgment passed by learned Magistrate dated 13.01.2005 as well as judgment/order passed by Revisional Court/Sessions Judge dated 03.03.2005 cannot be sustained in the eyes of law. Consequently present petition deserve to be allowed. 16. Hence, present petition is allowed. 17. Judgment and order dated 13.01.2005 passed by learned Judicial Magistrate as well as Judgment and order dated 03.03.2005 passed by Revisional Court/Sessions Judge are hereby set aside. 18. Application filed by respondent no. 2 under section 125 C.P.C. shall stand dismiss. 19. All the pending applications in the present petition stand dispose of.