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Madhya Pradesh High Court · body

2014 DIGILAW 1401 (MP)

Vijay Kumar v. Uma

2014-10-31

N.K.GUPTA

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JUDGMENT: (Passed on 31st day of October, 2014) Vide order dated 8.7.2003, the JMFC Multai District Betul in MJC No.101/2001 granted a maintenance of Rs.400/- per month to son of the respondent but the application of the respondent under Section 125 of the Cr.P.C. was dismissed. In Criminal Revision No.86/2003, the learned Additional Sessions Judge Multai, District Betul vide order dated 3.7.2004 has granted a maintenance @ of Rs.1700/- per month to the respondent. Being aggrieved with the aforesaid orders, the applicant has preferred the present revision. 2. Facts of the case in short are that the respondent had filed an application under Section 125 of the Cr.P.C. before the trial Court that her marriage took place with the applicant on 29.4.1992. Thereafter, their son Akshay had born. For few days, she was kept with comfort and thereafter, the respondent was being harassed for dowry demand and thereafter, she was sent to the house of her father. She pleaded about the income of the applicant and expenditure of herself and her son therefore, she has claimed the maintenance of Rs.4,000/- and Rs.2,000/- per month for herself and her son respectively. 3. The applicant in his reply denied all the allegations made by the respondent and prayed to dismiss the maintenance application. 4. The JMFC found that the respondent had no ground to reside separately and therefore, she was not entitled to get any maintenance therefore, the maintenance application of the respondent was dismissed. The revisionary Court found that the divorce took place between the parties during the pendency of the application and therefore, the respondent was entitled to get the maintenance as a divorcee wife. Consequently, the maintenance of Rs.1700/- per month was granted by the revisionary Court. 5. I have heard the learned counsel for the parties. 6. In the present case, there is no dispute relating to the quantum of maintenance. Uma (PW-1) has stated that the applicant had three acres of good land and his earning was Rs.1-2/- lacs. per annum. The applicant Vijay (DW-1) has stated that the land was in the name of his father, whereas he was only son of his father. He was working in the house of one Vijay (DW-2) and earning a sum of Rs.5,000/- per annum. per annum. The applicant Vijay (DW-1) has stated that the land was in the name of his father, whereas he was only son of his father. He was working in the house of one Vijay (DW-2) and earning a sum of Rs.5,000/- per annum. It was apparent that the applicant was getting himself maintained by income of his father and he could provide the maintenance to his wife and son from his income. He was a healthy person and therefore, if the notional minimum income of the applicant is computed then, @ Rs.82-85/- per day, he could earn a sum of Rs.2,500/- per month according to the minimum wages due to unskilled labour as fixed by the Collector rate. Vijay (DW-2) has stated that in his family, he had 2-3 different servants and for full day work, he was giving a sum of Rs.30/- per day. If the applicant was a part time servant in the fields of Vijay (DW-2) then, for remaining day of his life, he could do another work and he could earn the wages equivalent of his skill labourer. Hence, the applicant was competent to pay a sum of Rs.2100/- to the respondent and her son. 7. The main contention of the case is that the divorce took place between the parties during the pendency of the case and therefore, the trial Court dismissed the application under Section 125 of the Cr.P.C. filed by the respondent. If the judgment Ex.D/1 passed by the Second Additional District Judge, Chhindwara is perused then, it would be apparent that the petition of divorce was moved by the applicant and it was granted on the basis of cruelty and desertion done by the respondent. It was established that the respondent left the house of the applicant without any reason and therefore, she was not entitled for maintenance under Section 125 of the Cr.P.C. because she had no reason to live separately and hence, the trial Court has rightly dismissed the maintenance application of the respondent. 8. The Additional Sessions Judge while considering the revision has held that according to the Provision of Section 125 (1), Explanation (b) of the Cr.P.C., a divorcee wife can also get a maintenance and therefore, by quoting some case laws, he granted the maintenance to the respondent being a divorcee wife. 9. 8. The Additional Sessions Judge while considering the revision has held that according to the Provision of Section 125 (1), Explanation (b) of the Cr.P.C., a divorcee wife can also get a maintenance and therefore, by quoting some case laws, he granted the maintenance to the respondent being a divorcee wife. 9. Learned counsel for the applicant has submitted that no opportunity was given to the applicant to defend the maintenance application of the respondent as a divorcee wife. No pleadings were done by the respondent in her application and therefore, in absence of any opportunity of defence, no maintenance order could be passed against him. On the other hand, learned counsel for the respondent has submitted that a divorcee wife was also entitled to get the maintenance according to the Provisions of Section 125(1), Explanation(b) of Cr.P.C. He has placed his reliance upon the order passed by the Apex Court in the case of “Rohtash Singh Vs. Ramendri (SMT) and others” [ (2000) 3 SCC 180 ]. 10. In the light of order passed by the Hon'ble Apex Court in the case of Rohtash (supra), it is apparent that when the respondent was wife of the applicant, she could not get the maintenance without having any reason to live separately but as and when, she was divorced by her husband and a decree of divorce was passed then, in grant of maintenance, no such condition could be imposed and if she had no ground to live separately still she could get the maintenance. Under such circumstances, the respondent could get the maintenance from the applicant being a divorcee wife. 11. So far as the contention of learned counsel for the applicant is concerned, that no such amendment was made in the maintenance application and the applicant could not defend the application of the respondent being a divorcee wife, it would be made clear that the proceedings under Section 125 of the Cr.P.C. are quasi-civil and quasi-criminal in nature therefore, such technicalities cannot be observed while disposal of the application filed by the respondent. If it is observed that the respondent would have amended her pleadings that she was entitled to get the maintenance as a divorcee wife then, at present ten years are passed when the impugned order was passed and after ten years of the order passed by the revisionary Court, she may not be forced to go back and apply afresh in such a matter and also she would be deprived of the maintenance for last ten years. It was in the knowledge of the applicant that the decree of divorce was passed in his favour and therefore, for grant of maintenance to the respondent, he had to prove that she had sufficient means of income and the respondent was not married to anyone thereafter. The proposition of income of the respondent was already in issue at the time of her application pending before the trial Court and there was an opportunity to the applicant to lead an evidence upto that extent. 12. So far as the second marriage of the respondent is concerned, as and when the applicant will get an information that the respondent got herself married with someone else then, he can move an application under Section 127 of the Cr.P.C. to get the maintenance order set aside. Hence, by mere that technicality, that the respondent did not amend her petition after getting the decree of divorce that she claims her maintenance as divorcee wife, her maintenance application should not have been dismissed. 13. Under such circumstances, if the revisionary Court has granted the maintenance to the respondent as divorcee wife then, no illegality has been done by the revisionary Court. There is no reason to accept the present revision filed by the applicant. Consequently, the revision filed by the applicant is hereby dismissed with costs. The applicant shall bear his own costs and costs of the respondent's. Advocate fee for the parties be computed @ Rs.5,000/-. The respondent may claim the cost of these proceedings as arrears of maintenance before the trial Court.