BISWANATH SAHA Vs. SIKHA SAHA

JUDGEMENT

(1.) This Revisional Application is directed against order dated 5-10-85 passed by the learned Judicial Magistrate, 2nd Court at Barrackpore, 24 Parganas in Misc. Case No. 94 of 1982 u/s 125 Cr. P.C. The petitioner's case is that he married the O.P. wife and lived together for some time. As she became pregnant she was sent to her father's place. During her stay at her father's place she used to misbehave with the petitioner and also used to treat him with cruelty and insulted. After the birth of a new baby when he went to see the baby she insulted him but the O.P. warned him and asked him not to go there. She also refused to return to the petitioner's house with the baby. After some reconciliation the petitioner took her back but only for some time. On 6th December 1978 she left with the child deserting the petitioner. He was compelled to file a suit for a decree of divorce. On 20-1-83 the suit was decreed ex parte u/s 13(1) (ia), (ib) of the Hindu Marriage Act. The O.P. was not allowed maintenance pendente lite or permanent alimony. She of course did not appear before the learned Judge and prayed for the same. She filed an application u/s 125 of the Cr. P.C. alleging that the O.P. was ill treated by the petitioner and she was compelled to take shelter at her father's place. O.P. refused to maintain her and the baby. Accordingly she filed the application and prayed for maintenance for herself as well as for the baby. The O.P. petitioner before me appeared before the learned Magistrate and denied the allegation made. The case was that he is dependent on his father and he has no means to maintain his wife and the baby separately. His further case was that he has obtained a decree of divorce against the O.P. and in this circumstances she was not entitled to any maintenance.

(2.) The learned Magistrate found that divorced wife is entitled to maintenance. Accordingly the wife petitioner was entitled to order for maintenance in her favour. The learned Magistrate also dealt with the question of the means of the O.P. husband and ultimately found that since he is an able bodied man he is bound to maintain his wife and his child. Accordingly he ordered that the O.P. husband would pay maintenance at the rate of Rs. 125/- to the wife petitioner and Rs. 50/- to the baby from the month of March 1983. Being aggrieved the respondent petitioner has come up in this revisional application.

(3.) Mr. Basu submitted that since the petitioner has obtained a decree of divorce against the O.P. u/s 13(i)(ia) and (ib) of the Hindu Marriage Act petitioner is not entitled to an order of maintenance u/s 125 in view of the provisions of sec. 125(4) which provides that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if without any sufficient reasons she refused to live with her husband or if they are living separately by mutual consent. The words "entitled to receive an allowance" in sub-sec. (4) make it clear that the provision of this sub-sec. (4) must be read together with sub-sec. (1) to determine the entitlement of the wife to receive maintenance. Mr. Bose sought to impress that since Sec. 13(1)(ib) a Hindu marriage may be-dissolved by the decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The decree of divorce clearly shows that the learned 6th Addl. District Judge, Alipore found that the O.P. had deserted the husband for at least two years before the presentation of that divorce suit. Desertion as found by the learned Judge includes a finding that the wife refused to live with her husband without any sufficient reason. Accordingly Mr. Bose submits that she will not be entitled to an order of maintenance in her favour.