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2012 DIGILAW 2343 (RAJ)

Naresh Kumar Goyal v. Sunita

2012-12-19

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner Naresh Kumar is the husband of respondent Sunita and father of the respondents Dipu (daughter) and Nived (son). The respondents herein filed an application under Section 125 Cr.P.C. against the petitioner claiming maintenance. The application came to be heard and considered by the A.C.J.M., Sangaria who by his order dated 11.1.2010 rejected the application for maintenance filed by respondent Sunita but directed that the respondent Dipu would be entitled to receive maintenance @ Rs. 2,000/- per month from 13.4.2006 till 31.10.2008 i.e. date of her attaining majority. At the same time, the petitioner was directed to pay a sum of Rs. 2,000/- per month to his son Nived. The order passed by the learned Magistrate was challenged by two separate revisions - one by respondents Sunita and Dipu being Revision No.8/2010 and another by petitioner Naresh Kumar being Revision No.14/2010. The revisional court rejected the revision filed by the petitioner in toto but at the same time accepted the revision filed by Sunita and Dipu and directed that the petitioner shall be liable to make payment of maintenance at the rate of Rs. 2,000/- per month to the respondent Sunita from the date of filing of the application i.e. 13.4.2006 whilst the respondent Dipu shall be entitled to maintenance at the rate of Rs. 2,000/- per month from 13.4.2006 till the date of her marriage. 3. Now, the instant misc. petition has been filed by the petitioner challenging both the orders. 4. Learned counsel for the petitioner contended that the order passed by the revisional court directing payment of maintenance to the respondent Sunita is nothing short of an abuse of process of the court. It is submitted that the respondent Sunita is living separately from the petitioner since the year 1992. It is submitted that owing to the petitioner's desertion by the respondent Sunita, the petitioner filed an application under the Hindu Marriage Act for dissolution of the marriage and the competent court has issued a decree of divorce in favour of the petitioner on 30.7.1994. It is submitted that after getting the divorce decree, the petitioner had remarried with one Jaya and from this wedlock, two daughters have been born. It is submitted that after getting the divorce decree, the petitioner had remarried with one Jaya and from this wedlock, two daughters have been born. It is submitted that there is no justification whatsoever on the record as to why the respondent Sunita did not file the application for maintenance for a long period of 13 years. It is further submitted that Sunita filed an application under Section 125 Cr.P.C. in the Court of Magistrate at Bhatinda but then did not pursue the same and accordingly, the same was rejected on 29.5.1997 and now this second application has been moved by the respondent. Learned counsel for the petitioner has filed on record the decree of divorce granted by the Additional Sessions Judge, Nainital in favour of the petitioner on 30.7.1994 wherein the learned Judge, Family Court has held that the respondent Sunita deserted the petitioner and accordingly, the decree of divorce was granted in favour of the petitioner on the ground of desertion. It is submitted that once there is a finding of the competent civil court holding that the respondent wife deserted the husband i.e. petitioner, then she cannot claim maintenance by living separately because a spouse who deserts her husband without any justifiable cause is not entitled to receive maintenance whatsoever. Learned counsel for the petitioner has stressed upon Section 125(4) Cr.P.C. which provides for denial of maintenance to the wife if the wife is living in adultery and/or if the wife, without any sufficient reason, is refusing to live with her husband and/or if they are living separately by mutual consent. It is submitted that as the respondent no.1 has failed to show that she was living separately for any reasonable cause, she is not entitled to receive any maintenance from the petitioner. It is thus prayed that the order passed by the learned Magistrate rejecting the application filed by the respondent no.1 Sunita be restored and the order passed by the revisional court directing payment to maintenance to the respondents be quashed. 5. Per contra, learned counsel for the respondents justified the order passed by the revisional court and contended that the petitioner neglected to maintain his wife and children for any justifiable cause and thus, the trial court as well as revisional court have rightly accepted the claim of maintenance filed on behalf of the respondents. 5. Per contra, learned counsel for the respondents justified the order passed by the revisional court and contended that the petitioner neglected to maintain his wife and children for any justifiable cause and thus, the trial court as well as revisional court have rightly accepted the claim of maintenance filed on behalf of the respondents. It is submitted that the petitioner was under an obligation to maintain his wife and children and as he did not perform his marital obligations and rather entered into second marriage, the wife was very much entitled to live separately and claim maintenance. He, therefore, contended that the order passed by the learned revisional court is absolutely justified being based on proper appreciation of the material available on the record and thus, the misc. petition be rejected. 6. Heard and considered the arguments advanced at the bar and perused the record. 7. From a perusal of the record, it is apparent that so far as the two children are concerned, the trial court has accepted their claim on sound reasons. The trial court of course denied the maintenance to the respondent Dipu pursuant to her gaining majority. The revisional court has rightly held in the revision by directing that payment of maintenance be made to the respondent daughter till she marries. The said direction is consonance with the view taken by the Hon'ble Apex Court in the case of Jagdish Jugtawat v. Manjulata reported in 2002(5) SCC 422 . However, so far the maintenance claim of the respondent wife is concerned, it is an admitted situation that she is living separately from the petitioner from the year 1992 and that too without any justification. The petitioner applied for dissolution of marriage and the competent court has accepted the petitioner's prayer and has directed the dissolution of marriage on the ground that the wife deserted the husband without any justification. In view of the aforesaid finding and keeping in view Sub-Section (4) of Section 125 Cr.P.C., this Court is of the opinion that the wife who lives separately from the husband without any justifiable cause is not entitled to any maintenance. 8. Resultantly, the instant misc. petition is allowed in part. In view of the aforesaid finding and keeping in view Sub-Section (4) of Section 125 Cr.P.C., this Court is of the opinion that the wife who lives separately from the husband without any justifiable cause is not entitled to any maintenance. 8. Resultantly, the instant misc. petition is allowed in part. It is hereby ordered that the respondent no.1 Sunita, who has been granted maintenance by the revisional court vide its order dated 7.3.2011, shall not be entitled to any maintenance and accordingly, the direction issued by the revisional court in this regard by the order dated 7.3.2011 is quashed but at the same time, the order passed by the revisional court directing payment of maintenance to the respondent Dipu at the rate of Rs. 2,000/- per month till the date of her marriage is upheld. Likewise, the order passed by the learned Magistrate dated 11.1.2010 as well as the order passed by the revisional court dated 7.3.2011 directing payment of maintenance to the respondent Nived at the rate of Rs. 2,000/- per month is hereby affirmed. The petitioner shall make payment of maintenance to both the children by 10th of each month.The amount of arrears, if not paid, shall be deposited in equal quarterly instalments.If the maintenance and arrears of maintenance are not paid as directed above, then the trial court shall forthwith take steps to enforce the order as a whole by issuing warrants of recovery.Petition allowed partly. *******