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2018 DIGILAW 1573 (RAJ)

Premratan Nayak v. Suman

2018-07-25

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kuamr Garg, J. - Heard the learned Counsels for the parties. 2. The present revision petition has been filed by the petitioner against the order dated 4.5.2017 in Criminal Misc. Case No. 29 of 2016 whereby, learned Judge, Family Court No. 2 Bikaner allowed the application filed by the respondents under Section 125 Cr.P.C., 1973 directing the petitioner to pay maintenance in the sum of Rs. 4000/- per month and Rs. 1000/- per month respectively to respondent Nos. 1 and 2. 3. Learned Counsel for the petitioner submits that the 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 is herself earning sum of Rs. 12000/- per month by way of house hold production, therefore, she is not entitled for any amount under Section 125 Cr.P.C., 1973 It is also submitted that the respondent has filed the impugned order is liable to be quashed and set aside. 4. After hearing learned Counsel for the petitioner, I have perused the impugned order and scanned the entire record. 5. 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 any 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., 1973 reads as under: "125. Order for maintenance of wives, children and parents, - 1. xxxxx 2. xxxxx 3. xxxxx 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. 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. 6. 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 of 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. 7. In the instant case, the respondent No. 1 wife in her statement, has clearly stated that after marriage, her husband and In-laws started harassing the respondent mentally and physically demanding motorcycle and gold and she was forced to leave her matrimonial home. Thus, the stand of the petitioner husband that by virtue of Section 125(4) Cr.P.C, 1973 wife is not entitled to maintenance because she is living separately by mutual consent is not at all tenable. In such a situation where the petitioner husband and his family members used to beat and harass the respondent No. 1, the respondent No. 1 had sufficient reason to live separately and therefore, she cannot be denied maintenance under Section 125 Cr.P.C., 1973 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., 1973 referred to above, the respondent is entitled to maintenance 8. Thus, by virtue of the provisions of Section 125 Cr.P.C., 1973 referred to above, the respondent is entitled to maintenance 8. In view of the above, the learned Court below has not committed any error in awarding maintenance to the respondent wife and child as per section 125 of Cr.P.C., 1973 Hence, this revision petition is hereby dismissed.