BHIKANRAO BHUJANGRAO DESHMUKH Vs. SINDHUBAI

JUDGEMENT

(1.) By this revision, the applicant challenges the order dated 27.1.1986 passed by Judicial Magistrate, First Class, First Court, Khamgaon in Misc. Criminal Case No. 21 of 1978, where under the learned Judicial Magistrate rejected the contention of the applicant that he is unable to provide maintenance as he always remains sick and he has no source of income.

(2.) The non-applicant Sindhubai wife of applicant filed an application under section 125 of the Criminal Procedure Code. This application registered as Misc. Criminal Case No. of 1976 was decided on 18.7.1978 directing the applicant-husband to pay Rs. 75.00 per month besides costs of Rs. 25.00. The non-applicant then filed an application for recovery of the amount of arrears of maintenance which was registered as Misc. Criminal Case No. 21 of 1978. By this application, the non-applicant claimed the maintenance allowance from 13.1.1976 till 17.8.1978 at the rate of Rs. 75.00 per month to the tune of Rs. 2325.00 and the costs under section 125(3) of the Criminal Procedure Code. From time to time, the case was adjourned till 21.2.1980. The learned judicial Magistrate passed an order for attachment of movables. On 12.8.1980, an application (Exhibit 5) was moved that applicant-husband was not having any property, movable or immovable, according to the report received. The applicant husband be sent to jail. No response was received from the applicant. Ultimately, the learned Judicial Magistrate passed an order directing the applicant-husband to undergo Rigorous Imprisonment for 31 months for non-payment of maintenance for the same number of months amounting to Rs. 2325.00 and non-bailable warrant was issued against the applicant. In pursuance to this warrant, the applicant-husband was arrested on 23.2.1981 and on that very day he was produced before the court and from there he was sent to jail to undergo the imprisonment. The order passed on 23.2.1982 sending applicant to jail was challenged in Criminal Revision No. 17 of 1982. The said revision was allowed and Additional Sessions Judge, Khamgaon, remitted the case to the trial Court with necessary directions. The trial Court was directed to give opportunity to show cause why the order granting maintenance to non-applicant wife was not complied with. Accordingly, the Judicial Magistrate, First Class granted an opportunity to the applicant and after recording the evidence found that the contention raised by him was without any substance. The result was that the application filed by non-applicant wife under section 125(3) of the Code Criminal Procedure was to proceed further according to law. It is this order which is impugned herein.

(3.) The applicant expressed his inability to pay the alimony because he had no agricultural land and was earning his livelihood by earning as a labourer. He also complained of ill-health having pain in the stomach and chest. This prevented him from working regularly. He however, showed his willingness to maintain the non-applicant wife, probably suggesting if she stayed with him. It cannot be forgotten that because the applicant refused or neglected to maintain the non-applicant as his wife, an order granting separate maintenance allowance was passed. Even then it is open for either of the parties to decide on reconciliation. But this cannot be a ground for non-payment of alimony awarded by the Court.