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2016 DIGILAW 695 (ORI)

Srikant Panda v. Anita Panda

2016-08-26

B.K.NAYAK

body2016
ORDER 26.08.2016 Heard learned counsel for the parties. 2. The petitioner in this writ application prays for quashing the proceeding under Section 125 of the Code of Criminal Procedure filed by the opposite party in the Family Court, Berhampur, which has been registered as Cr. P.No. 109 of 2013, on the ground that the said maintenance proceeding is not maintainable in terms of sub-Section (4) of Section 125 Cr. P.C. as because a decree of divorce between the parties by mutual consent under Section 13-B of Hindu Marriage Act has already been passed by judgment dated 24.09.2011 by the learned Civil Judge (Senior Division), Dharamgarh in Mat Case No. 32 of 2011 and that the said decree has become final. 3. Section 125(4) Cr.P.C. reads as follows: “(4) No wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceeding, 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” 4. Learned counsel for the petitioner relies on the 3rd circumstance contemplated under sub-Section (4) of Section 125 Cr.P.C. which disentitles a wife from claiming maintenance, i.e., where the wife and the husband are living separately by mutual consent. Learned counsel for the petitioner in this respect relies on a decision of this Court reported in 2005 (1) OLR 642 : (Santosh Nayak- vrs.-State of Orissa and another) Learned counsel for the opposite party on the other hand relies on the decisions of this Court reported in 1986 (2) OLR 379: (Snehalata Biswal –vrs. Saroj Kumar Biswal and 2004(1) OLR 305 (Narendra Mohapatra-vrs. Manorama Mohapatra.) 5. The decision cited by the learned counsel for the petitioner has no application to the present case inasmuch as in the cited decision there was no dissolution of marriage between the husband and wife, but they had only entered into a written agreement for living separately and in pursuance thereof they were living separately. The decisions cited by the learned counsel for the opposite party apply with full force to the facts of the present cse. The matter has however already been settled by the Hon’ble Supreme Court in AIR 2000 S.C. 952 , Rohtash Singh –Vrs. The decisions cited by the learned counsel for the opposite party apply with full force to the facts of the present cse. The matter has however already been settled by the Hon’ble Supreme Court in AIR 2000 S.C. 952 , Rohtash Singh –Vrs. –Ramendri and others where regarding applicability of sub-Section (4) of Section 125 Cr.P.C. Hon’ble apex Court in paragraph-6 held as follows: “6. Under this provision, a wife is not entitled to any Maintenance Allowance from her husband, if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-Section (4) of Section 125, Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Cr.P.C.” In view of the aforesaid legal position, it must be held that sub-Section (4) of Section 125 Cr.P.C. is not bar for the opposite party (divorced wife) in the present case for claiming maintenance from the petitioner as long as she is not remarried. W.P. (Crl.) is therefore dismissed. Interim order of stay stands vacated and the learned Court below is directed to dispose of the proceeding expeditiously. Issue urgent certified copy. Petition dismissed.