Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1498 (RAJ)

Mohammed Mehboob v. Shabana Bano

2018-07-16

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kumar Garg, J. - Heard the learned Counsels for the parties. 2. The present revision petition has been filed by the petitioner against the order dated 14.11.2017 in Criminal Misc. Case No. 122/2016 whereby, learned Judge, Family Court, Pali partly allowed the application filed by the respondents wider Section 125 Cr.P.C. directing the petitioner to pay maintenance of 13,000/- per month to the respondent No. 1 and Rs. 1,500/- to respondent No. 2. 3. Learned Counsel for the petitioner submits that respondent No. 1 herself left the matrimonial house of the petitioner without any reason and despite his efforts, respondent No. 1 was not ready to live with the petitioner, therefore, there is no question of granting any alimony to respondent No. 1. It is further argued that respondent No. 1 does stitching work and earns a sum of Rs. 250/- daily, therefore, she is not entitled for any amount under Section 125 Cr.P.C. It is also submitted that the respondent has filed the application only with a view to harass the petitioner, and therefore, the impugned order is liable to be quashed and set aside. 4. On the other hand, the learned Counsel for the respondent-wife has argued that the petitioner and the in-laws continuously harassed the respondent wife demanding dowry and therefore, she was forced to leave her matrimonial house. It is further argued that respondent No. 1 is maintaining her five years old child, therefore, since the husband has neglected and refused to maintain her, the is entitled for maintenance. The order passed by the learned Family Court is absolutely legal and does not call for any interference. 5. After hearing learned Counsel for the parties, I have perused the impugned order and scanned the entire record. 6. Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of Section 125 inter alia says that if my person having sufficient means neglects or refuses to maintain his wife who is unable to maintain 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. Section 125(4) of the Cr.P.C. reads as under: 125. Order for maintenance of wives, children and parents- 1. xxxx 2. xxxx 3. xxxx 4. Section 125(4) of the Cr.P.C. reads as under: 125. Order for maintenance of wives, children and parents- 1. xxxx 2. xxxx 3. xxxx 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. 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. 7. A holistic reading of the provisions would clearly reveal that responsibility and liability of a person to maintain his wife, children and parents rests on the condition that if any person having sufficient means neglects or refuses to maintain them (wife, children, parents), he can be ordered to make a monthly allowance for maintenance for his wife or child or parents at such monthly rate. The sub-sections (4) and (5), categorically makes it clear as to when the wife is not entitled to maintenance. It is specifically enacted by the legislature that the wife is not entitled to receive maintenance if she is living in adultery or if she refuses to live with her husband without any sufficient reason or that they are living separately by mutual consent. 8. In the instant case, the respondent No. 1 wife in her statement as AW-1 has clearly stated that she lived with the petitioner for about seven years and since the petitioner and in-laws started harassing the respondent demanding a sum of Rs. 5 lacs, she was forced to leave her matrimonial home. On the contrary, NAW-1 petitioner husband has admitted that he has performed second marriage with another woman. Thus, the stand of the petitioner husband that by virtue of Section 125(4) Cr.P.C., wife is not entitled to maintenance because she is living separately by mutual consent is not at all tenable. 5 lacs, she was forced to leave her matrimonial home. On the contrary, NAW-1 petitioner husband has admitted that he has performed second marriage with another woman. Thus, the stand of the petitioner husband that by virtue of Section 125(4) Cr.P.C., wife is not entitled to maintenance because she is living separately by mutual consent is not at all tenable. In a situation when the petitioner husband contracted second marriage, the first wife has sufficient reason to live separately and therefore, she cannot be denied maintenance under Section 125 Cr.P.C. It is also not contended by the petitioner that the respondent No. 1 has re-married. Thus, by virtue of the provisions of Section 125 Cr.P.C. referred to above, the respondent is entitled to maintenance. 9. In view of the above, the learned Court below has not committed any error in awarding maintenance to the respondent wife as per Section 125 of Cr.P.C Hence, this revision petition is hereby dismissed. Record of the Trial Court be sent back forthwith.