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 him. 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 when the petitioner took her back 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 pendentelite 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 as the O. P. was ill treated by the petitioner 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. His case was that he was 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 these circumstances she was not entitled to any maintenance.

(2.) THE learned Magistrate fecund 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 (J. 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, 1 983. Being aggrieved the respondent petitioner has come up in this revisional application. 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, the wife 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-section 4 makes it clear that the provision of this sub-section 4 must be read together with sub-section 1 to determine the entitlement of the wile to receive maintenance. Mr. Bose sought to impress that under section 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 proceeding 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.

(3.) DESERTION has not been de-fined in the Hindu Marriage act. Essence of desertion is forsaking and abandonment of one spouse by the other without reasonable cause and without consent and against the wish of the other. It is a total repudiation of obligation of marriage. When the Matrimonial Court decreed the suit for divorce on the finding that the wife has deserted the petitioner for a continuous period for than two years it has to be accepted that she refused to live with her husband without any sufficient reason. The question,therefore, is if this finding of the Matrimonial court is binding on the learned Magistrate while dealing with an application u/s 125 Cr. P. C, the factors to He considered by the learned magistrate in dealing with an application u/s 125 are those which are prevailing at least on the date of the order. As it appears the suit was decreed on 14. 1. 1983. The impugned order u/s 125 was passed on 5. 10. 85. Therefore, on the date of order there was no obligation on the part of the wife to live with her husband. Accordingly, sub-section 4 of Section 125 will have no application in the facts of the instant case. It is true that even though the husband has obtained a decree of divorce against the wife on the ground that she refused to live without any sufficient reason even then he will have to slitter an order u/s 125 Cr. P. C. The erring party in such cases even though the wife, the husband has to maintain her for no fault of his own. Since section 125 Cr. P. C. was meant to prevent destitution and vagrancy even in such a case the wife will be entitled to an order. Section 125 (1) has provided that wife includes a woman who has been divorced by or has obtained a divorce from her husband, and has not remarried. Accordingly, the expression "wife" for the purpose of section 125 includes a divorced woman and the ground of divorce is not a matter for consideration. Accordingly, I do not find that the learned Magistrate has made any error in granting the maintenance to the petitioner on the ground that she is a divorced woman. The other point urged by Mr. Bose is that the Learned Magistrate ought not to have granted maintenance on the ground that the husband was not able to maintain the wife. On this the learned Magistrate has found that the husband is an able bodied man and has accordingly granted maintenance. The amount awarded by the learned Magistrate does not appear to be any heavy amount Rs. 12 5/- for the wife and Rs. 50/- for the baby is a small amount compared to a day to day requirement: of an individual in the present, circumstances. In view of what has found above I find no reason for my interference and this application is accordingly rejected. Application rejected.