MADAVARAPU RAMAKRISHNA Vs. STATE

JUDGEMENT

(1.) The husband aggrieved by grant of maintenance to the 2nd respondent/wife in M.C. No. 35 of 2007 by the Judge, Family Court, Warangal, filed this revision petition. Notice in this revision petition was sent to the 2nd respondent by registered post.

(2.) There is no dispute with regard to marital status between the parties. There is also no dispute about they living separately from each other. While so, the petitioner filed OP No. 13 of 2006 on the file of Senior Civil Judge, Suryapet under Section 9 of the Hindu Marriage Act for restitution of Conjugal rights against the 1st respondent and obtained decree therein on 08.09.2006 as per Ex.B-1. No doubt, the said decree for restitution of conjugal rights is an exparte decree. Inspite of it, it is a valid decree until it is set aside. Till now the 2nd respondent did not take any steps for setting aside the said exparte decree. Subsequently, both the parties filed OP No. 38 of 2009 before the Senior Civil Judge Court, Khammam for divorce by mutual consent under Section 13-B of the Hindu Marriage Act. After appearing on certain dates of adjournment in that OP, the 2nd respondent did not appear thereafter and so it resulted in dismissal. Now in the year 2007, the 2nd respondent filed the present maintenance case in the lower court under Section 125 Cr.P.C. The lower court granted maintenance of Rs. 1,500/- to her per month from the petitioner.

(3.) It is contended by the petitioner's Counsel that when decree for restitution of conjugal rights is subsisting between the parties, it is duty of the wife to join the petitioner and that when the 2nd respondent did not join him inspite of the decree for restitution of conjugal rights, she is not entitled for maintenance under Section 125 Cr.P.C. Considerations for grant of decree for restitution of conjugal rights is lack of reasonable or justifiable cause for the wife to live separately from her husband. When the said fact was found against the wife resulting in passing of decree for restitution of conjugal rights, now again it does not lie in the mouth of the wife to contend that she is entitled to live separately from her husband and claim maintenance. Section 125 Cr.P.C. contemplates proof of neglect or refusal on the part of the husband to maintain his wife. The wife has to further prove that she has reasonable or justifiable cause to live separately from her husband. In the light of the decree for restitution of conjugal rights, any reasonable or justifiable cause to the wife to live separately from her husband. Now the 2nd respondent/wife cannot be heard to say that she has reasonable or justifiable cause to live separately from the petitioner inspite of decree for restitution of conjugal rights obtained by the petitioner against her. It does not matter whether the decree for restitution of conjugal rights is put into execution by way of filing of any execution petition in the marital court. Simply because the 1st respondent as P.W.1 expressed no knowledge about the said decree, she cannot get over the said legal bar for claiming maintenance.