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2013 DIGILAW 318 (RAJ)

Chandu v. Shobha Lal

2013-02-07

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioners who are wife and children respectively of the respondent against the order dated 23.6.2010 passed by the learned Addl. Sessions Judge No. 1, Bhilwara in revision whereby the learned Revisional Court has affirmed the order dated 17.11.2008 passed by learned Judicial Magistrate West, Bhilwara in Case No. 331/2004 rejecting the application filed by the petitioners under Section 125 of the Cr.P.C. 2. Succinctly stated the facts of the case are that an application was filed by the petitioners in the Court of learned Judicial Magistrate West, Bhilwara under Section 125 Cr.P.C. claiming maintenance from the respondent. The respondent No. 1 filed a reply to the application and submitted that the petitioners were not entitled to receive maintenance. It was averred in the reply that it was the petitioner No. 1 who deserted the husband Shobha Lal without any justifiable cause and thus neither she nor the children were entitled to receive maintenance. He also took a plea that he had filed an application under Section 9 of the Hindu Marriage Act which was allowed and a decree for restitution of conjugal rights was passed in his favour but despite that the petitioner did not come back to perform her marital duties and thus the petitioners were not entitled to receive maintenance. 3. The trial Court by its order dated 17.11.2008 held that the petitioner No. 1 had deserted her husband the respondent without any justification and thus she was not entitled to receive maintenance from the respondent rejected her claim. Likewise, for the petitioners No. 2 and 3 also the trial Court held that it was the specific case of the respondent that he was ready and willing to maintain the children but as the wife was keeping them away without any justification, they too were not entitled to receive any maintenance from the respondent. The petitioners unsuccessfully challenged the order passed by the Magistrate as the Revisional Court also affirmed the same by its Order dated 23.6.2010. Now, the petitioners have approached this Court by way of the instant miscellaneous petition seeking maintenance from the respondent. 4. Learned counsel for the petitioners submits that the respondent has remarried during his subsisting marriage with the petitioner No. 1 and thus she was entitled to live separately and claim maintenance. Now, the petitioners have approached this Court by way of the instant miscellaneous petition seeking maintenance from the respondent. 4. Learned counsel for the petitioners submits that the respondent has remarried during his subsisting marriage with the petitioner No. 1 and thus she was entitled to live separately and claim maintenance. The counsel for the petitioner further submits that even if the claim of the petitioner No. 1 for maintenance is held untenable then too the petitioners No. 2 and 3 being the minor children of the respondent cannot be denied their lawful claim of maintenance because it is the obligation of the father to maintain his own minor children. 5. Per Contra, learned counsel for the respondent submits that it is the petitioner No. 1 who without any justification has deprived the husband from his conjugal rights. He submits that despite a decree passed by the District Judge, Bhilwara under Section 9 of the Hindu Marriage Act, the petitioner No. 1 has not come to the marital home for performing her marital obligations and thus whilst living separately she would not be entitled to claim and receive maintenance from the respondent. He thus contends that the learned trial Court as well as the Revisional Court have rightly refused the prayer of the petitioners under Section 125 Cr.P.C. 6. Heard and considered the arguments advanced at the bar and perused the orders impugned and the record. In the view of this Court, both the Courts below have rightly held that the petitioner No. 1 without any justification failed to perform her matrimonial obligations, despite the decree of competent Court having been passed against her. Thus, she was rightly denied maintenance by both the Courts below but so far as minor children are concerned it is the obligation of every father to provide adequate maintenance to his minor child. It is not the case of the respondent that he had sought the custodial rights of his children and thereafter also the children were not given to him in custody. Rather it has not been pleaded by the respondent in the trial Court that he had filed any application under the Guardian and Wards Act seeking custody his own children. Thus, the respondent is definitely under an obligation to maintain his own minor children even though they are living with their mother. Rather it has not been pleaded by the respondent in the trial Court that he had filed any application under the Guardian and Wards Act seeking custody his own children. Thus, the respondent is definitely under an obligation to maintain his own minor children even though they are living with their mother. It is not the fault of the children that their mother has neglected to perform her matrimonial obligatory, and therefore, the children cannot be deprived due to the negligent conduct of the mother. Therefore, this Court is of the opinion that she application filed by the children was wrongly rejected by the learned Magistrate simply relying on the fact that the petitioner No. 1 had neglected to perform her conjugal rights. From a perusal of the record it becomes apparent that the petitioner No. 2 was 11 years of age when the application under Section 125 Cr.P.C. was filed on 15.10.2004. Thus, by now he has crossed the age of majority and he cannot be entitled for maintenance under Section 125 Cr.P.C. The petitioner No. 3 Sanju is the minor son of the respondent and thus he would be entitled to receive maintenance from the respondent till he attains the majority. 7. Accordingly, the miscellaneous petition succeeds in part and so far as the petitioners No. 1 and 2 are concerned the orders impugned are upheld to their extent but so far as petitioner No. 3 is concerned, it is hereby directed that he shall be entitled to receive the maintenance @ Rs. 2500/- from the respondent from the date of this order till the date he attains majority. Record be sent back. The learned trial Court shall enforce the order maintenance forthwith.Petition partly allowed. *******