DHANI RAM Vs. PARWATI

JUDGEMENT

(1.) THIS is an application under Section 482 CrPC, 1973. The application is directed against an order dated 9th January, 1978 of the court of III Addl. Munsif Magistrate Aligarh, on an application made under Section 127 CrPC for cancellation of the maintenance order under Section 125, on the ground that since the passing of that order the Delhi District court had granted the applicant, husband a decree for judicial separation against the wife on 24th May, 1976.

(2.) THE Magistrate had in his order held that the proceedings under Section 125 CrPC were independent and that the decree for judicial separation that had been passed by the Delhi District Court was passed ex parte and there was no circumstance shown to him which may make it necessary for him to change the maintenance order in view of the decree of the Delhi District Court. A revision against that order was preferred by the applicant husband. THE revision was dismissed on 11th August, 1978 by the court of the III Addl. Sessions Judge Aligarh. THE learned Sessions Judge held that in the main proceedings under Sec. 125 the applicant husband had taken the plea that his wife had deserted him and he even offered to live with her but the wife had refused to live with him on account of danger to her life. THE wife's plea was upheld by the Magistrate. According to the learned Addl. Sessions Judge no new circumstance was created by the decree for judicial separation, for it would be followed by the decree of divorce and even after a decree for divorce a wife can obtain maintenance under Section 125 of the Code as it now stands-so long-as she does not remarry and that, therefore, there was no justification to cancel the order on the ground that the decree of judicial separation has been passed. It is curious and that a copy of the judgment of the district court granting the decree of judicial separation was not filed before the learned Magistrate nor before the learned Addl. Sessions Judge, when they dealt with the matter. Since, however it could be presumed that a decree for judicial separation could not have been passed by a district court under the Hindu Marriage Act, unless it had found the other party guilty of desertion or cruelty or some such other grounds which entitle a spouse to such a decree, I permitted the learned counsel to produce the certified copy of the judgment of the district court Delhi whereby judicial separation is said to have bee a decreed in favour of the applicant, husband. That copy has been produced before me. It shows that the opposite party wife was served by "substituted service" and the service having been held to be sufficient, the Delhi District Court proceeded to hear the case ex parte and on the basis of the pleadings and the oral testimony of the husband it came to the finding that "the case of desertion is made out." THE wife is said to have deserted the husband in December 1966. THE petition was filed much later. Judicial separation was decreed under Section 10(1) (a) of the Hindu Marriage Act on the finding that the desertion had lasted for more than two years.

(3.) IN the result, the application succeeds and is allowed. The application under Section 127 (2) made by the applicant, husband on 26th July, 1977 for cancellation of the maintenance order dated 30th March, 1976, is allowed, and the order of maintenance dated 30th March, 1976 under Section 125 of the Code of Criminal Procedure, 1973 is cancelled with effect from 26th July, 1977. The applicant husband, shall, however, be bound to pay the amount of maintenance ordered against him and accrued due upto the 26th July, 1977 and the same shall be recoverable inspite of the cancellation of the order dated 30th March, 1976 under which it was payable. Application allowed.