SADHANA PAREKH Vs. DEVENDRA PAREKH

JUDGEMENT

(1.) This revisional application is directed against an order dt. 15.11.2000 passed by the learned Additional Sessions Judge, 1st Court, Hooghly in Criminal Motion No. 79 of 2000.

(2.) The petitioner Sadhana Parekh and O.P. No. 1 Devendra Parekh are legally married husband and wife, their marriage having taken place on 22.11.78 a son and a daughter were born to them. The marital relation between the two parties strained and petitioner wife started living at her husband's house at Uttarpara and the O.P.-husband having left that house started living in another house in Calcutta. The petitioner made an application under Section 125 Cr.P.C. for maintenance at the rate of Rs. 1,500/- per month. The husband contended that there was a mutual agreement between the husband and wife in presence of witnesses regarding their living separately and forging the claim of maintenance etc. and hence, it was the specific contention of the O.P. husband that in view of the above, the petitioner-wife was not entitled to any maintenance from the O.P.-husband in view of the provisions of Clause 4 of Section 125 of the Code of Criminal Procedure. Both the parties adduced evidence before the learned Judicial Magistrate, 2nd Court, Serampore, Hooghly and after hearing both the parties and considering the materials on record including the separation agreement, marked as Exhibit-A in the case the learned magistrate by his order dt. 31.01.2000 found that the said Exhibit-A was no agreement by any mutual consent between the parties and that the provisions of Section 125(4) Cr.P.C. was not applicable in the case. The learned Magistrate further found on evidence that the O.P. husband did not pay a single furthing to the petitioner-wife and so he held that the petitioner was entitled to get maintenance from her husband. Then, having duly considered the facts and circumstances and evidence on record the learned Magistrate found that the petitioner-wife was entitled to get maintenance at the rate of Rs. 700/- per month from the O.P. husband from the date of filing of the application for maintenance that is 19.3.97. The learned Magistrate accordingly allowed the application for maintenance by the wife and order was made to the effect that the petitioner-wife was to get maintenance at the rate of Rs. 700/- per month from the O.P. husband The O.P. husband was further directed to go on making payment to be made within tenth of each succeeding month. This order was to take effect from the date of filing of the application that is 19.3.97. The learned Magistrate had further ordered that the arrears maintenance allowance had to be paid by eight monthly equal instalments and the fraction amount, if any, had to be paid along with the last instalment and also that the first such payment had to be made by 10.3.2000 and thereafter month by month. This judgment and order of the learned Magistrate dt. 31.1.2000 was assailed by the O.P. husband by way of a criminal motion before the learned Additional Sessions Judge, 1st Court, Hooghly in Criminal Motion No. 79 of 2000. The learned Additional Sessions Judge having considered the materials on record and the judgment and order of the learned Magistrate allowed the said criminal motion and set aside the said judgment and order of the learned Magistrate by his impugned order dt. 15.11.2000. According to the petitioner-wife who has made this revisional application before this Court, has assailed the said judgment and order passed by the learned Additional Sessions Judge and has alleged that the learned Additional Sessions Judge had misconstrued the provisions of Section 125(4) Cr.P.C., relied on the so-called separation agreement. Exhibit-A, which was not at all admissible in evidence in accordance with law, had failed to appreciate the legal position and the evidence in its true perspective and had ultimately made the impugned judgment and order which was illegal and cannot be sustained. According to the petitioner-wife the judgment and order of the learned Magistrate did not suffer from any illegality and was not liable to be set aside and the impugned order of the learned Additional Sessions Judge, therefore, should be set aside and maintenance allowance to be given to the petitioner-wife.

(3.) The petitioner-wife got an order of maintenance from the learned Magistrate. But she was denied that by the learned Additional Sessions Judge. And hence is this her almost last desperate try to protect herself from vagrancy and destitution the prevention of which is the avowed object of Section 125 of the Code of Criminal Procedure that stands as a measure of social justice. Section 125 only gives effect to the fundamental and natural duty (of a man to maintain his wife. The right to maintenance conferred by this Section is a statutory right.