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Himachal Pradesh High Court · body

2017 DIGILAW 212 (HP)

Bala Devi v. Ved Prakash

2017-03-20

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The petitioner herein instituted a petition constituted under Section 125 Cr.P.C. before the learned Chief Judicial Magistrate, Sirmaur at Nahan, H.P wherein she claimed maintenance for herself as also for her minor children. The learned Chief Judicial Magistrate concerned while deciding the aforesaid petition declined awarding of maintenance qua the petitioner herein whereas it held her minor daughters to stand entitled to receive maintenance quantified at Rs.1500/- each from the respondent. 2. The respondent standing aggrieved by the pronouncement made by the learned Chief Judicial Magistrate whereupon he was directed to pay maintenance at Rs.1500/- each to his minor daughters hence preferred a Criminal Revision petition before the learned Sessions Judge, Sirmaur District at Nahan, H.P. Also the petitioner herein standing aggrieved by the order rendered by the learned Chief Judicial Magistrate whereby he declined to her maintenance hence preferred a Revision petition before the learned Sessions Judge, Sirmaur at Nahan. Both the petitions aforesaid stood dismissed by the learned Sessions Judge. 3. Now, the petitioner has instituted the instant petition before this Court whereby she assails the concurrently recorded findings by both the learned Courts below in their impugned orders whereby her claim for maintenance from her husband stood declined to her. 4. The learned Senior Advocate appearing for the petitioner has contended qua the sole ground which prevailed upon the learned Courts below for declining maintenance to the petitioner is anvilled in RW-7/A and RW-7/B. However, he submits qua the mere factum of the respondent herein lodging an FIR against the petitioner herein perse would not render her disentitled to claim maintenance from the respondent herein, preeminently when he is bound to maintain her, she uncontrovertedly being his legally wedded wife, whereas his refusing to maintain her tantamounts to his infringing the mandate of Section 125 Cr.P.C whereupon he stands interdicted against neglecting or refusing to maintain his legally wedded wife. “125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w.e.f. 18-12-1978). “125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w.e.f. 18-12-1978). (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him. (4) No Wife shall be entitled to receive an allowance 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. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 5. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 5. However, the aforesaid submission is rudderless given even if assumingly, there is existing evident proof of the respondent herein neglecting or refusing to maintain his legally wedded wife, nonetheless when such neglect or refusal is hereat prima-facie harbored upon the petitioner herein holding an adulterous relationship hence unveiling conduct unbefitting of a chaste spouse, a prima donna tenet for leveraging her claims besides when there exists at this stage evident proof qua the petitioner herein conspiring with one Ranjeet Singh, to eliminate the respondent herein whereupon the respondent stood constrained to lodge an FIR, moreover, with disclosures existing in the exhibits aforesaid qua the petitioner herein standing lodged in judicial custody at a time prior to the institution of the apposite petition under Section 125 of Cr.P.C before the learned Chief Judicial Magistrate concerned, thereupon at this stage does constrain an inference qua the refusal or neglect of the respondent herein to maintain the petitioner herein standing anvilled upon unbefitting conduct of the petitioner. In aftermath she stood not entitled to claim maintenance from the respondent herein. In view of the above, there is no merit in this petition, the same is accordingly dismissed. All pending applications stand disposed of accordingly.