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2024 DIGILAW 77 (CHH)

Sushil Kumar Oraon S/o Shri Prabhat Minj v. Aruna Bhagat W/o Sushil Kumar Oraon

2024-01-23

PARTH PRATEEM SAHU

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ORDER : 1. Challenge in this revision petition is to the order dated 12.10.2022, passed in M.J.C. No. 06 of 2021, whereby learned Family Court, Jashpur, District-Jashpur allowed the application under Section 125 of Cr.P.C. and awarded maintenance of Rs.14,000/- per month to the respondent-wife. 2. Learned counsel for applicant-husband submits that order passed by the learned Family Court awarding maintenance to respondent-wife is per-se illegal. Learned Family Court without recording the finding that applicant neglected or refused to maintain his respondent-wife has passed the order awarding maintenance. The reason which was taken into consideration for living of respondent-wife separately in the pleading is that applicant herein is impotent. It is contention of learned counsel for applicant-husband that impotency is not a ground mentioned under Section 125 of Cr.P.C. to be sufficient cause for wife to reside separately and in support of his contention he placed reliance upon the decision of Allahabad High Court in case of Bundoo vs. Smt. Mahrul Nisa and Another, 1978 Cri. L.J. 1661. 3. Learned counsel for respondent-wife opposes the submission of learned counsel for applicant and would submit that learned Court below considering the entirety of facts and circumstances of the case, nature of evidence brought on record documentary as also the oral, has passed the impugned order in accordance with law, which does not call for any interference. She submits that ground of impotency can also be one of the sufficient reason for wife to reside separately from her husband. In support of her contention, she placed reliance upon the decision of Hon'ble Supreme Court in case of Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan and Another, (1981) 4 SCC 250 . 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. Perusal of the application filed under Section 125 of Cr.P.C. would show that applicant-wife has filed an application stating that she was deprived of her conjugal rights. Applicant-husband has made such situation and forced her to leave her place of residence and after marriage applicant-husband had not established physical relations with her and further pleaded that on account of non-establishment of physical relation between them, her life is made to hell. Applicant-husband has made such situation and forced her to leave her place of residence and after marriage applicant-husband had not established physical relations with her and further pleaded that on account of non-establishment of physical relation between them, her life is made to hell. Though this ground of impotency was refused by applicant-husband in his reply before the Family Court, however, the reply to the legal notice submitted by applicant-husband, in Para 5 & 6 there is categorical admission of applicant-husband, that he has informed about his physical in-competency before the marriage and has not suppressed this fact. Reply to the legal notice submitted by applicant-husband is marked as Ex.PA-6. Learned Family Court has taken note of this fact of admission of in-competency by applicant-husband in reply to the legal notice and came to conclusion that there was sufficient reasons for respondent-wife herein to reside separately. 6. Conjugal rights of the parties to the marriage is foundation of marriage. Deprivation of the same by either of them will be cruelty on other partner and therefore, there is provision under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and if any parties deprived of his/her partner of conjugal rights, it may be one of the ground to seek divorce. If the married person is not having the conjugal relationship with his/her partner which makes him/her entitled to take divorce meaning thereby to separate from his or her partner. For the reasons as discussed above that the impotency of applicant-husband as admitted by him would be sufficient reason for the respondent-wife to reside separately. 7. Hon'ble Supreme court has considered the identical issue in case of Sirajmohmedkhan (supra) and while considering the decision of the High Court have held that the observations made in case of Bundoo (supra) are in the nature of obiter dictum, in support of the argument of Mr. Keshwani and further held as under: “32. We find ourselves in entire agreement with the observations made by the learned Judges of the Karnataka High Court which seems to be the correct position in law. Keshwani and further held as under: “32. We find ourselves in entire agreement with the observations made by the learned Judges of the Karnataka High Court which seems to be the correct position in law. Even the learned Judge who had delivered the judgment in the instant case had very rightly pointed out as follows: “If the maintenance of a wife is supposed to include only food, shelter and clothing having regard to the conjugal rights and if the just cause on which wife can refuse to stay with the husband and yet claim maintenance, can have reference only to the comfort and safe of the wife then it might reduce the wife to the status of a domesticated animal. In the context of the changing status of woman in society such a proposition would seem outdated and obsolete.........In other words, the Courts cannot compel the wife to stay with the husband on the ground that the husband though he is forcing her in a situation where her physical and mental well being might be adversely affected, as there is no intention on the part of the husband to inflict that cruelty, she should suffer that predicament without demur and be satisfied with a grab to bite and some rags to clothe her and a roof over her head.” 33. We fully endorse the observations made above. Apart from the various decisions referred to above, there is a direct English decision on the point. In Sheldon vs. Sheldon, (1966) 2 All ER 257 (CA), Lord Denning observed as follows: “I rest my judgment on the ground that he has persistently, without the least excuse, refused her sexual inter course for six years It has broken down her health. I do not think that she was called on to endure it any longer. It has been said that, if abstinence from intercourse causing ill-health can be held to be cruelty, so should desertion simpliciter leading to the same result.” 34. Thus, from a conspectus of the various authorities discussed above and the setting, object and interpretation of the second proviso to sub-section (3) of s. 125 of the Code of 1973, we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. Thus, from a conspectus of the various authorities discussed above and the setting, object and interpretation of the second proviso to sub-section (3) of s. 125 of the Code of 1973, we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife's refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means. In these circumstances, therefore, it would be pusillanimous to ignore such a valuable safeguard which has been provided by the legislature to a neglected wife.” 8. For the forgoing discussion and the decision of Hon'ble Supreme Court, the submission made by learned counsel for applicant that ground of impotency will not be sufficient cause for wife to reside separately is not sustainable and it is hereby repelled. 9. Accordingly, I do not find any infirmity or illegality in the order passed by the learned Family Court. The criminal revision being devoid of substance, which is liable to be and is hereby dismissed.