KANCHAN DEVI Vs. PROMOD KUMAR MITTAL

JUDGEMENT

(1.) Leave granted

(2.) The marriage between the parties was solemnised on 18-4-1973, According to the appellant she was thrown out of the matrimonial home, after she gave birth to four female children one after the other which annoyed her in-laws. Thereafter the respondent husband neglected and refused to maintain her which compelled her to file an application for maintenance under S. 125, Cr. P. C. The trial Court allowed the application and granted her Rs. 500/- p. m. as maintenance. In appeal, the order of maintenance was maintained but the amount was reduced to Rs. 400/- per month. The respondent moved High Court in revision and on 6-10-82 the High Court remanded the matter for rehearing. During the pendency of the application in trial Court, it was dismissed in default and on appellant 's moving an application for restoration, the same was restored by the trial Court. A revision petition filed by the respondent against the order of restoration was dismissed. Subsequently, the High Court also dismissed an application filed under S. 482, Cr. P. C. by the husband on 16-1-1984. While the matters rested thus it transpires from the record that the respondent husband had also filed a petition for divorce and obtained an ex parte decree of divorce on 22-10-80. On a petition filed by the appellant, the ex parte decree of divorce was set aside on 9-9-83 and subsequently the petition for divorce filed by the respondent was finally dismissed on 13-10-1983. There is variance between the parties as to whether the matter is pending in appeal at the instance of the husband. No payment, in the case under S. 125, Cr. P. C. was ever made to the appellant thereby compelling the wife to seek execution of the order. The respondent thereupon brought the appellant back to his house. It appears that compromise was then arrived at between the parties with regard to the order of maintenance made under S. 125, Cr.P. C. and as per the terms of the compromise, the appellant agreed to accept Rs. 200/- per month as maintenance arrears with effect from 10-2-1984 as against Rs. 440/- p. m. awarded in her favour. The appellant, alleges that thereafter she was at once again thrown out of the matrimonial home by the respondent husband after he had made her to sign the compromise deed. She filed an application under S. 127. Cr. P. C. on 10-2-84. The application was dismissed in default on 11-8-86 but on petition filed by the appellant it was restored by the trial Court on 29-8-86. A revision filed by the respondent before the Sessions Judge was dismissed on 9-4-87. A interim order came to be made by the trial Court on 24-4-1987 enchancing the maintenance amount by Rs. 150/-. per month. The appellant moved the High Court through a petition under S. 482, Cr. P. C. and on 4-11-87 the High Court quashed the order of restoration, the order of the Session Judge dismissing revision, filed by the respondent as also the order of enhancement of maintenance granted in favour of the appellant. This appeal calls in question the said order of the High Court dated 4-11-87.

(3.) During the pendency of the proceedings in this Court, an effort was made for reconciliation between the parties. It was admitted by the learned counsel for the parties that the parties have not been living together for the last more than one decade as husband and wife and their relationship was totally strained and bitter against each other. On 7-12-95 it appeared to us that there was no possibility of any reconciliation between the parties and that the marriage between them had irretrievably broken down. The respondent through his learned counsel categorically submitted that there was no possibility of the parties remaining together as husband and wife and that position was not disputed by learned counsel appearing for the appellant.