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Himachal Pradesh High Court · body

2019 DIGILAW 1951 (HP)

Chander Kiran v. Arun Kumar

2019-12-18

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - By way of present petition filed under Section 482 of Cr.P.C. read with Article 227 of the Constitution of India, prayer has been made on behalf of the petitioners to quash and set aside the judgment dated 28.7.2016 passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur (Camp at Bilaspur), H.P. in Cr. Revision No. 05/10 of 2016, reversing the order dated 22.9.2015 passed by learned Judicial Magistrate 1st Class, Court No3, Ghumarwin, District Bilaspur, H.P. in Cr. Petition No. 28/4 of 2011, whereby Court below while allowing application under Section 125 Cr.P.C., having been filed by petitioners directed the respondenthusband to pay a sum of Rs. 6,000/- each per month on account of maintenance to the petitioner. 2. Precisely, the facts of the case as emerges from the record that petitioners herein preferred an application under Section 125 Cr.P.C., in the Court of learned Judicial Magistrate 1st Class, Court No.3, Ghumarwin, District Bilaspur, H.P., seeking maintenance to the tune of Rs. 6,000/- per month from the respondent-husband averring therein that she (petitioner No.1) is the legally wedded wife of the respondent and petitioner No.2 was the child born out of their wedlock. Petitioner No.1 alleged that soon after the marriage, respondent-husband started harassing her and as such, she was compelled to live at her paternal house at village Padyalag. Petitioner No.1-wife claimed that she has no source of income and as such, needs monthly maintenance to maintain herself as well as her daughter i.e. petitioner No.2. 3. Learned Judicial Magistrate 1st Class, Court No.3 Ghumarwin, vide order dated 22.9.2015 allowed the maintenance and directed the respondent-husband herein, to pay a sum of Rs, 6,000/- each per month to the petitioners. 4. Being aggrieved and dissatisfied with the aforesaid order passed by learned trial Court, respondent preferred a Revision Petition under Sections 397 and 399 of the Cr.P.C., in the Court of learned Additional Sessions Judge, Ghumarwin, District Bilaspur (Camp at Bilaspur), H.P., who vide judgment dated 28.7.2016 accepted the appeal and set aside the order granting maintenance passed by the learned trial Court below. In the aforesaid background, petitioners have approached this Court in the instant proceedings. 5. I have heard learned counsel for the parties and also gone through the record. 6. In the aforesaid background, petitioners have approached this Court in the instant proceedings. 5. I have heard learned counsel for the parties and also gone through the record. 6. Precisely the controversy, which needs to be decided in the instant proceedings is, "whether maintenance, if any, under Section 125 Cr.P.C. can be granted in favour of petitioner after dissolution of marriage or not?" 7. Before adverting to the factual matrix of the case, it would be apt to take note of Section 125 Cr.P.C., which reads as under:- "125.xx xx xx (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. xx xx xx xx" 8. Careful perusal of the aforesaid provisions of law, especially Section 125(4) of Cr.P.C. clearly suggests that 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. 9. It is undisputed before this Court that petitioner-wife herein, had filed a joint petition along with the respondent-husband under Section13-B of the Hindu Marriage Act before learned District Judge Hamirpur, praying therein for divorce by way of mutual consent. Statements of the parties on first motion were recorded on 13.11.2014, wherein petitioner-wife specifically admitted before learned District Judge Hamirpur that it has been agreed inter se parties that respondent-husband would pay a sum of Rs.1,00,000/- as lump sum amount towards lifetime maintenance to her. She also admitted before learned District Judge Hamirpur that an amount of Rs.60,000/- stands already received by her, whereas remaining Rs.40,000/- would be paid to her on the next date of hearing. 10. Learned Additional Sessions Judge Ghumarwin, while reversing the findings returned by learned Trial Court has taken note of the statement of petitioner-wife, who had specifically stated before learned District Judge, Hamirpur that she would withdraw the petition filed by her under Section 125 of Cr.P.C.. 10. Learned Additional Sessions Judge Ghumarwin, while reversing the findings returned by learned Trial Court has taken note of the statement of petitioner-wife, who had specifically stated before learned District Judge, Hamirpur that she would withdraw the petition filed by her under Section 125 of Cr.P.C.. It is also a matter of record that statements of the parties on second motion were recorded on 16.05.2015, wherein petitioner reaffirmed her stand taken in earlier statement and reiterated her desire to seek divorce by way of mutual consent. Record further reveals that on 16.05.2015, balance amount of Rs.40,000/- was also paid to the petitioner and it was recorded that no monetary claim remained outstanding between wife and husband (petitioner and respondent). Order passed by learned District Judge, Hamirpur in petition filed under Section 13-B of Hindu Marriage Act is on record (Ext. RX), and same has attained finality. It is quite apparent from the material available on record that during pendency of the petition filed under Section 125 Cr.P.C. seeking therein maintenance, some compromise arrived inter-se parties, where-after both petitioner-wife and respondent-husband decided/resolved to file joint petition under Section 13-B of the Hindu Marriage Act in the Court of learned District Judge, Hamirpur, praying therein for dissolution of marriage by way of mutual consent. 11. During the pendency of the application filed under Section 125 Cr.P.C., decree of divorce by way of mutual consent came to be passed, wherein admittedly, petitioner No.1 herein, agreed/undertook to withdraw the application having been filed by her under Section 125 Cr.P.C.. Learned Trial Court despite having noticed/recorded factum with regard to dissolution of marriage by way of mutual consent proceeded to award maintenance to the tune of Rs.6,000/- each per month in favour of petitioner, which order passed by learned Court below, cannot be said to be in accordance with law. 12. Once factum with regard to divorce inter se petitioner No.1 and respondent had come to the notice of Trial Court, Trial Court ought to have dismissed the application filed by petitioner No.1 under Section 125 Cr.P.C., especially in view of the undertaking given by her before the learned District Judge Hamirpur that on account of her full and final settlement with respondent No.1, she would withdraw petition/application filed by her under Section 125 Cr.P.C.. Learned Trial Court has gone astray while returning finding that since Civil Court failed to decide the issue of maintenance finally at the time of granting divorce by mutual consent, petitioner-wife is entitled to get maintenance under Section 125 Cr.P.C.. It is quite apparent from the record that petitioner No.1 received a sum of Rs.1,00,000/- as full and final settlement of her claim against respondent-husband and as such learned trial Court below ought not have allowed petitioner to retract from her statement made before the Court of learned District Judge Hamirpur. Moreover, once party had agreed inter se them for one time settlement, there was no occasion for the trial Court to adjudicate the claim of maintenance, if any, due from the respondent-husband to the petitioner-wife. 13. A Coordinate Bench of this Court in case Saroj Bala @ Geeta vs. Ashok Kumar Kalyan, (2013) 2 RCR(Criminal) 129 , has categorically ruled that a wife, who has obtained divorce under the provisions of Hindu Marriage Act, cannot claim maintenance, if any, under Section 125 Cr.P.C. even if she remains unmarried after divorce. Leaving everything aside, careful perusal of Section 125(4) of Cr.P.C. clearly dis-entitles a wife from receiving any interim maintenance and expenses if she is living in adultery or if, without any sufficient reason, is living separately by mutual consent. Petitioner No.1 herself decided to live separately after having obtained decree of divorce by mutual consent passed by the learned District Judge, Hamirpur. Consequently, in view of above, this Court finds no illegality and infirmity in the judgment passed by the learned Additional Sessions Judge, Ghumarwin, which otherwise appears to be based on proper appreciation of facts and law and as such the same is upheld and present petition is dismissed being devoid of any merit. Pending misapplication applications, if any, also stand disposed of.