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2016 DIGILAW 816 (ORI)

Padmalochan Nath v. Pranati Panda

2016-09-15

B.K.NAYAK

body2016
JUDGMENT B.K. NAYAK, J. - The short question that falls for consideration in the application under Section 482, Cr.P.C. is whether a wife, whose marriage has been dissolved on the ground of her living in adultery, would not be entitled to maintenance in view of the bar contained in Sub-Section (4)of Section 125 of the Code of Criminal Procedure, 1973 ? 2.The said question arises in the following factual background : The petitioner and the opposite party were admittedly husband and wife. The opposite party filed Criminal Misc .Case lNo.193 of 2006 before the learned S.D.J.M., Sambalpur claiming monthly maintenance @ Rs.3,000/- and Rs.1,500/- respectively for herself and for her minor son under Section 125, Cr.P.C. alleging torture and desertion by the petitioner and non-providing of maintenance by him. The petitioner (husband) filed his show cause in the proceeding making counter allegations that the opposite party deserted him without any sufficient cause and that she was seen moving regularly with one Sibasankar Padhee of Burla. Both the parties led evidence in the proceeding before the learned J.M.F.C., Sambalpur who, on consideration of the evidence on record, by his judgment dated 30.10.2011 allowed the application of the opposite party and granted a monthly maintenance of Rs.2,000/- in her favour and Rs.1,000/- for the minor son from the date of the passing of the order. Challenging the order of the learned J.M.F.C., the petitioner filed Criminal Revision No.47 of 2011 before the learned sessions Judge, Sambalpur. At the same time, the present opposite party also filed Criminal Revision No.46 of 2011 praying for payment of maintenance as per order of the learned J.M.F.C. from the date of filing application under Section 125,Cr,.P.C.. By the common judgment dated 10.01.2013, the leaned Sessions Judge dismissed Criminal Revision No.47 of 2011 and allowed Criminal Revision No.46 of 2011, directing for payment of maintenance as per order of the learned J.M.F.C. from the date of filing of the claim application, i.e. 09.11.2006. 3.It transpires that during the pendency of the maintenance proceeding before the learned J.M.F.C., Sambalpur, the present petitioner filed MAT Case No.38 of 2007 before the learned Civil Judge (Senior Division), Sambalpur for dissolution of marriage between the parties, on the ground that the opposite party was living in adultery. The said MAT was decided on 09.03.2009 ex- parte and decree of dissolution of marriage was passed. The said MAT was decided on 09.03.2009 ex- parte and decree of dissolution of marriage was passed. During hearing of the maintenance proceeding before the learned J.M.F.C., and also the Criminal Revision before the learned Sessions Judge, Sambalpur, the petitioner raised the contention that decree of dissolution of marriage between the parties having been passed by the competent Civil Court on the ground that the opposite party was living in adultery, she was not entitled to maintenance in view of the provision of Sub-Section (4) of Section 125, Cr.P.C. It appears that the Trial Court has rejected the said contention of the petitioner relying on the decision of the Hon’ble Apex Court in the case of Rohtash Singh v. Ramendri and others: AIR 2000 SC 952 to the effect that the provision of Sub-Section (4) of Section 125, Cr.P.C. would be applicable only where the marriage between the parties subsists and not where it has come to an end. The contention raised before the revisional Court has also been negatived. 4.Learned Counsel for the petitioner in assailing the concurrent judgments of the Courts below raises the very same contention that the competent Civil Court found the opposite party to be living in adultery and on that ground having passed the decree of dissolution of marriage. Sub-Section (4) of Section 125, Cr. P.C. is a bar against the claim of opposite party for maintenance. Learned Counsel for the petitioner relying on the decision of th High Court of Madras (Madurai Bench) in the case of M. Chinna Karuppasamy v. Kanimozhi decided on 16.07.2015 states that the facts of the case in hand are totally identical to the facts of that case, where the Madras High Court noticed the judgment of the Hon’ble Supreme Court in Rohtash Singh (supra) and distinguished the same on the ground that it was a case of divorce on the ground of desertion and not on the ground of the wife living in adultery. 5.Learned Counsel for the opposite party, on the other hand, contended that the decision of the Hon’ble Apex Court in the case of Rohitash Singh (supra) is quite clear on the point and, therefore, there is no scope for interference with the concurrent judgment passed by both the Courts below. 5.Learned Counsel for the opposite party, on the other hand, contended that the decision of the Hon’ble Apex Court in the case of Rohitash Singh (supra) is quite clear on the point and, therefore, there is no scope for interference with the concurrent judgment passed by both the Courts below. 6.The contention of the learned Counsel for the petitioner is not acceptable and the decision of the Madras High Court cited by him is not applicable in view of the fact that the question has already been settled by this Court at least in two decisions of this Court reported in 1986 (2) OLR 370 (Snehalata Biswal v. Sarjo Kumar Biswal) and 2004 (1) OLR 305 (Narendra Mohapatra v. Manorama Mohapatra) where it has been held that a wife divorced on mutual consent is entitled to maintenance from the husband, if she is not a re-married. Further, in a recent decision of this Court delivered on 26.08.2016 in W.P. (CRL) No.1595 of 2013 in the case of Srikant Panda v. Anita Panda, while accepting the principle laid down by the Hon’ble Apex Court in the case of Rohatash Singh (supra), it has been held that none of the grounds disentitling a wife from claiming maintenance under Sub-Section (4) of Section 125, Cr. P.C. is applicable to a divorced wife. 7.In the case of Rohtas Singh (supra) with regard to applicability of Sub-Section (4) of Section 125, Cr. P.C., the 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 circumstances 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. Taking the three circumstances individually, it will be noticed that the first circumstances 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. “ The legal position settled by the Hon’ble Apex Court is that the circumstances contemplated by Sub-Section (4) of Section 125, Cr. P.C. presuppose the existence of matrimonial relation, that is to say, where the marriage between the parties subsists and not where it has come to an end. 8.Therefore, the distinction made by the Madras High Court on the ground that even after dissolution of marriage the divorced wife should also remain faithful to the husband for claiming maintenance is fallacious, inasmuch as, the wife who does not owe any marital obligation to the husband after dissolution of the marriage should be expected to remain faithful to the ex-husband. 9.In the aforesaid analysis, it is held that Sub-Section (4) of Section 125, Cr. P.C. is no bar for the divorced wife to claim maintenance where marriage between the parties is dissolved on ground of the wife living in adultery. Hence the present opposite parte is entitled to claim maintenance from the petitioner as long as she is not re-married. The CRLMC is devoid of merit and therefore dismissed. CRLMC dismissed.