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2012 DIGILAW 644 (RAJ)

Shimbhu Ram v. State of Rajasthan

2012-03-14

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the petitioner, the Public Prosecutor and the counsel for the respondent No. 2. Perused the impugned order. 2. The instant two miscellaneous petitions have been filed by the petitioner challenging the order dated 10.10.2008 passed by the learned Additional Chief Judicial Magistrate, Parbatsar, district Nagaur in two separate applications No. 84/2005 and 201/2005 filed by the respondent No. 2 for execution of the order of interim maintenance. 3. Learned counsel appearing for the petitioner submits that the order, for the execution whereof, the applications were filed by the respondent No. 2, was an order of granting interim maintenance to the respondent No. 2 and ultimately the main application filed by the respondent No. 2 under Section 125 Criminal Procedure Code came to be decided by the concerned Court on 25.8.2006 holding that the respondent No. 2 was living in adultery. The said order was challenged by the respondent No. 2 by way of filing a revision petition, which too was rejected vide order dated 1.5.2010 and in the meantime the order granting interim maintenance in favour of the respondent No. 2 (wife) and her son was sought to be enforced by filing an application for issuance of warrants of recovery under Section 125(3) Criminal Procedure Code, which was allowed by the learned Magistrate. The petitioner, on the rejection of the main application under Section 125 Criminal Procedure Code filed two applications for dropping of the recovery proceedings, which have been rejected by the order dated 10.10.2008. The said order has been challenged by the petitioner by way of the instant miscellaneous petitions. 4. Learned counsel for the petitioner submits that since the main application filed by the respondent No. 2 under Section 125 Criminal Procedure Code came to be rejected to her extent and since the order of rejection of the application has been affirmed in the revision, the respondent No. 2 was not entitled to claim and receive any maintenance from the petitioner. He has placed reliance on a decision of Hon'ble Andhra Pradesh High Court rendered in B. Rnkmini Bai v. B.B. Snraj Bhan Singh, AIR 1963 A.P. 407 . Thus, he submits that the order of the learned Magistrate, whereby warrants of recovery has been issued and the application filed by the petitioner for dropping of the recovery proceedings has been rejected, deserves to be reversed. 5. Per contra, Mr. Thus, he submits that the order of the learned Magistrate, whereby warrants of recovery has been issued and the application filed by the petitioner for dropping of the recovery proceedings has been rejected, deserves to be reversed. 5. Per contra, Mr. R.S. Choudhary, learned counsel appearing for the respondent No. 2, submits that the order of refusal of maintenance was passed on 1.5.2005 and prior to that there was an order of granting interim maintenance operating in favour of the respondent No. 2 and her son and in view of the valid order of interim maintenance available to the respondent No. 2 (wife), she was very much entitled to receive the interim maintenance amount till the date the main application under Section 125 Criminal Procedure Code was decided. 6. After having heard the arguments advanced by the learned counsel for the parties at the bar and after having gone through the order of the learned Court below, this Court is of the opinion that the order of interim maintenance merges in the final order when the application under Section 125 Criminal Procedure Code is finally decided. Once the principal claim of the respondent No. 2 regarding her being entitled to receive maintenance under Section 125 Criminal Procedure Code was rejected, thereafter she would not be entitled to receive the maintenance money directed to be paid to her even under the order directing payment of interim maintenance. 7. Thus, this Court is of the opinion that the respondent No. 2 (wife) was not entitled to receive the payment of interim maintenance awarded to her subsequent to rejection of the main application under Section 125 Criminal Procedure Code, particularly more so when the rejection of the application was on the ground that the respondent No. 2 was living in adultery. The judgment of the Hon'ble Andhra Pradesh High Court, referred above, is almost on the same facts.Section 125(4) Criminal Procedure Code read as below: "(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceedings, 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." Thus, Section 125(4) Criminal Procedure Code leaves no room for doubt about the proposition that any wife living in adultery is not entitled to receive the allowance of maintenance or interim maintenance from her husband under this section if she is living in adultery. Thus, once there is a finding of the Court below in this matter that the respondent wife was living in adultery and the said finding has been affirmed in revision, then the respondent wife is definitely precluded from claiming maintenance or interim maintenance from her husband.Resultantly, the miscellaneous petitions succeed and the impugned order dated 10.10.2010 passed by the learned Additional Chief Judicial Magistrate, Parbatsar, district Nagaur, whereby the application filed by the petitioner has been rejected, is set aside to the extent it relates to the amount of interim maintenance payable to the respondent No. 2 (wife) only. If any amount is due to be paid to the son of the respondent No. 2 which was directed to be paid to him as interim maintenance @ Rs. 600/- per month, then the same shall be paid to the son of the respondent No. 2. The stay petitions stand disposed of.Petition allowed. *******