AMINA MOHAMMEDALI KHOJA Vs. MOHAMMEDALI RAMJANALI KHOJA

JUDGEMENT

(1.) An interesting question of law which arises for considerable in this criminal writ petition is whether a wife is entitled to an order of maintenance under the provisions of section 125 of the Criminal Procedure Code, 1973, against the husband who has obtainded a decree for restitution of conjugal rights from a Civil Court of law.

(2.) The petitioner wife, Mr. Amina Mohammedali Khoja, made an application for maintenance under section 125 of the Criminal Procedure Code, 1973 in the Court of the learned Judicial Magistrate, First Class, Cout No. 1, Pune, being Miscellaneous Application No. 204 of 1979, on 23rd March, 1979 on various allegations against her husband, Mohammadali Ramjanali Khoja (hereinafter referred to as "the respondent husband"). The learned trial Magistrate who considered the evidence adduced before him, by an order dated 26th February 1983, directed the respondent husband to pay monthly allowance of maintenance at the rate of Rs. 100/- from the date of the application to the petitioner wife and also ordered that he should pay cost of Rs. 100/- to her. Aggrieved by the said order, the respondent husband carried the matter in revision to the Sessions Court at Pune being Criminal Revision Application No. 103 of 1983. The learned Additional Sessions Judge, Pune, who heard the said revision application was of the opinion that the petitioner wife was not entitled to monthly allowance of maintenance as granted to her by the learned trial Magistrate because the respondent husband had obtained a decree in Civil Suit No. 14 of 1979 filed by him in the Court of the Civil Judge (Junior Division), Umbergaon, against the wife for restitution of conjugal rights. On taking such a view of the matter he allowed the revision application and set aside the order passed by the learned trial Magistrate thereby dismissing the maintenance application of the petitioner wife, by his order dated 9th March, 1984. It is the said order that has been impugned by the petitioner wife in this writ petition.

(3.) Mr. Bhosale, learned Advocates appearing on behalf of the petitioner wife, urged, that the impugned order passed by the learned Additional Sessions Judge, Pune, is not sustainable in law inasmuch as it would not be a correct proposition in law that the wife would not be a correct proposition in law that the wife would not be entitled to maintenance under section 125 of the Criminal Procedure Code, 1973 only because a decree for restitution of conjugal rights was passed against her. Mr. Bhonsale further urged that the record does not show that after obtaining such a decree the respondent husband made any efforts to bring back his wife. Mr. Bhonsale also submitted that the suit for restitution of conjugal rights was filed by the respondent husband on 17th April, 1979 after the petitioner wife had made her application for maintenance on 23rd March, 1979 with a view to thwart the maintenance order which was likely to be passed against him. Controversing these submissions, Miss Shah, learned Advocate appearing on behalf of the respondent husband, submitted that once it is held that the petitioner wife had deserted the company of the respondent husband for which a decree for restitution of conjugal rights was passed against her, it is more sufficient proof that the wife was not interested in residing with her husband and in that case she is not entitled to any maintenance from him.