SAU SHEELA Vs. SUBHASH

JUDGEMENT

(1.) THE applicants who are the wife and son of the non-applicant No. 1 Subhash, have challenged the order passed by the Additional Sessions Judge in Criminal Revision No. 211/90 setting aside the order of maintenance passed in favour of applicant No. 1-the wife by the Judicial Magistrate First Class, Amravati, Court No. 3.

(2.) THE undisputed position is that, the applicant No. 1 was married to non-applicant No. 1 some time in the year 1983. They lived happily for some time. But from February, 1985, applicant No. 1 wife went to reside in the house of her maternal uncle and since then she did not return to the house of non-applicant No. 1. While this was the position, applicants filed an application under S. 125 of Criminal Procedure Code for maintenance on 20-1-1989. During the pendency of the said maintenance application non-applicant No. 1 filed Hindu Marriage Petition No. 78/87 for divorce under S. 13 of the Hindu Marriage Act on the ground of cruelty and desertion. While the maintenance application continued to remain pending, Hindu Marriage Petition No. 78/87 came to be decided on 14-12-1989. The learned Joint Civil Judge, Senior Division, Amravati passed a decree for judicial separation. Thereafter on 24-7-1990, Judicial Magistrate First Class, Amravati passed an order for maintenance in favour of applicants awarding them maintenance of Rs. 250/- and Rs. 150/- respectively per month. Non-applicant No. 1 challenged this order in Criminal Revision Application No. 211/90. The learned Sessions Judge by his order dated 24-4-1992 allowed the said revision application so far as grant of maintenance to applicant No. 1 is concerned and set it aside mainly on the ground that applicant No. 1 who was held to have deserted her husband in the matrimonial proceedings cannot be held to be entitled to get maintenance under S. 125 of Criminal Procedure Code, since the finding recorded by the Civil Court was binding on the criminal court. He, however, confirmed the order of maintenance passed in favour of applicant No. 2.

(3.) MRS. Sirpurkar, appearing on behalf of the applicants urged that merely passing of a decree for judicial separation was not enough to disentitle the applicant No. 1 for grant of maintenance and in an enquiry under S. 125 of Criminal Procedure Code, the Court will have to see the ground on which the decree for judicial separation was passed and whether it can be said that applicant No. 1 was not residing with the non-applicant No. 1 without sufficient cause. She relied upon Angrez Kzaur v. Baldev Singh AIR 1980 P and. H 171 wherein it is held that decree for judicial separation under S. 13-A of the Hindu Marriage Act, 1955 would not affect maintenance order granted to the wife earlier under S. 488 of Criminal Procedure Code. She also relied upon Nathu Ram v. Atar Kunwar AIR 1969 All 191 : (1969 Cri LJ 517) wherein it is held that a decree for judicial separation under S. 10 of the Hindu Marriage Act does not operate as bar for claiming maintenance under S. 488 of the old Criminal Procedure Code. Relying on these two authorities, it was urged that in the present case if the judgment passed in Hindu Marriage Petition granting a decree for judicial separation is read as a whole, it will be clear that the learned Civil Judge has recorded a finding that it was not the husband who was given cruel treatment by 'the wife, but it was the wife who was given cruel treatment by the husband and that is why the wife had gone to her uncle and was living separately continuously from the year 1985. She urged that if these facts are taken into consideration merely because there was a factum of separation proved, the applicant No. 1 cannot be denied her right of maintenance if she proved that she was living separate from non-applicant No. 1 for sufficient cause.