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2014 DIGILAW 985 (KAR)

Shrishail Ramakrishna Bijapure v. Vidya

2014-11-13

S.N.SATYANARAYANA

body2014
Judgment 1. The respondent in Crl.Misc.No.154/2012 on the file of the Principal Judge, Family Court, Hubli has come up in this petition seeking to quash the order dated 21.11.2013 passed in the said proceedings granting maintenance to the respondent herein at the rate of Rs.5,000/- p.m. from the date of the aforesaid petition. The said order is impugned by the respondent on the ground that the relationship of husband and wife between the petitioner and the respondent herein ceased pursuant to the judgment dated 12,04.2012 passed in M.C.No.29/2009 on the file of the Civil Judge (Sr.Dn.), Raibag. 2. The brief facts leading to the petition are as under: The petitioner herein and respondents were respectively husband and wife and their marriage was solemnized on 28.05.2005 at Hubli. It is stated that their matrimonial house was set up at Raibag and they were living as husband and wife. After sometime, the respondent-wife unable to adjust with the family of the petitioner, left the matrimonial house and returned to her parents' house at Hubli, which has resulted in petitioner herein filing M.C.No.29/2009 seeking dissolution of his marriage with the respondent. The said petition was contested on merits and subsequently came to be disposed of by judgment dated 12.04.2012, wherein, the Court below while granting decree of divorce in favour of the petitioner herein awarded permanent alimony to the respondent in a sum of Rs.50,000/-. It is seen that the said amount of Rs.50,000/- which was awarded as permanent alimony was deposited by the petitioner herein and the same was withdrawn by the respondent. 3. When the matter stood thus, it is seen that the present petition in Crl.Misc.No.154/2012 is filed by the respondent under Section 125 of Cr.P.C. seeking maintenance at the rate of Rs.10,000/- p.m. from the date of filing of Crl.Misc.No.154/2012. Admittedly, the petitioner and respondent herein are qualified medical doctors. There is nothing on record to demonstrate that respondent is not having any income from the said avocation and she is not capable to maintain herself. It is seen that petition under Section 125 of Cr.P.C, is filed as if she is not able to maintain herself, without furnishing any particulars regarding her avocation, income and social status. There is nothing on record to demonstrate that respondent is not having any income from the said avocation and she is not capable to maintain herself. It is seen that petition under Section 125 of Cr.P.C, is filed as if she is not able to maintain herself, without furnishing any particulars regarding her avocation, income and social status. When that being the case, the Court below without verifying the pleadings and evidence available on record has proceeded to allow the maintenance petition filed under Section 125 of Cr.P.C, relying upon the judgment rendered by the Apex Court in the matter of Rohtash Singh V. Ramendri reported in 2000 AIR (S.C.W) page 715, and awarded maintenance to the respondent in a sum of Rs.5,000/- p.m.. 4. On going through the judgment referred to supra, it is seen that the facts of the said case are different from the facts on hand. In the said proceedings, the divorced wife was seeking maintenance on the ground that, no maintenance was fixed while disposing of the petition filed for decree of divorce and in the said case, there is nothing on record to show that, whether the wife was a qualified person and whether she had capacity to have independent income on her own. In the instant case, at the time of disposing of the petition for divorce, the Court below has awarded permanent alimony in a sum of Rs.50,000/-, which is duly accepted by the respondent. Assuming for a moment that the said amount is insufficient, nothing prevented the respondent herein to file an appeal challenging the quantum of permanent alimony that was granted in earlier proceedings. However, the said option is not exercised by the respondent and instead she has filed petition under Section 125 of Cr.P.C. seeking grant of maintenance. 5. Before considering this, if the relevant provision of Section 125(l)(a) is looked into, which reads as under: "Section 125(l)(a):If any person having sufficient means neglects or refuses to maintain -his wife, unable to maintain herself, or" On going through the said provision, it is seen that, to file a petition under Section 125 of Cr.P.C., the status of husband and wife should be there between the petitioner and the respondent. In addition to that, the petitioner should establish that she does not have any source of income and she is unable to maintain herself. In addition to that, the petitioner should establish that she does not have any source of income and she is unable to maintain herself. In the instant case, admittedly, the relationship of husband and wife is not in existence between them in view of the judgment dated 12.04.2012 passed in M.C.No.29/2009 dissolving the marriage between them. Further, regarding ability to maintain herself is taken into consideration, the respondent is a qualified medical doctor, there is nothing on record to demonstrate that she is not having any avocation or she is not capable to maintain herself. In that view of the matter, allowing the said petition considering her as wife is erroneous and the order which is passed in Crl.Misc.No. 154/2012 is contrary to the very provision of Section 125(l)(a) of Cr.P.C. In that view of the matter, this Court feel that the impugned order is required to be set aside. Accordingly, this petition is allowed and the order dated 21.11.2013 passed in Crl.Misc.No.154/2012 on the file of the Principal Judge, Family Court, Hubli is hereby quashed.