RANJIT KUMAR PANDEY Vs. SWAHA RANI PANDEY

JUDGEMENT

(1.) AGAINST an order dated September 9, 1977 passed by the Sub -Divisional Judicial Magistrate, Basirhat in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) directing the petitioner to pay a sum of Rs. 40 per month towards the maintenance of the wife opposite party and a further sum of Rs. 80 per month towards the maintenance of their daughter, the petitioner filed a re -visional application and by his order dated January 5, 1978 the Additional Sessions Judge, 12th Court, Alipore rejected the said application and upheld the order of the learned Magistrate. The petitioner thereafter filed an application for divorce under Section 13 of the Hindu Marriage Act and the same was registered as Matrimonial Suit No. 825 of 1977. The suit was transferred to the Third Court of the Additional District Judge, Alipore and was renumbered as Matrimonial Suit No. 19 of 1978. The suit was decreed ex parte on February 1, 1978 and the learned Judge declared that the marriage between the parties stood dissolved on ground of desertion of the petitioner -husband by the wife -opposite party. Thereafter the petitioner filed two applications in the Court of the learned Sub - Divisional Judicial Magistrate for cancellation of the order; one under Section 127(2) and the other under Section 125(4) and (5) of the Code on the grounds that the wife -opposite party was leading a life of adultery from the very inception of her marriage with him and that she deserted him since 1970, as would be evident from the ex parte decree passed in the divorce suit. After hearing the parties the learned Magistrate rejected the applications by his order dated April 11, 1979. Aggrieved by the said order the petitioner moved this Court and obtained the present Rule.

(2.) MR . Prasun Chandra Ghosh, the learned Advocate appearing in support of the Rule, in his usual fairness submitted that he was unable to support the ground of adultery for cancellation of the order of maintenance. He submitted that in view of the judgment and decree passed in the divorce suit, the order of maintenance is liable to be cancelled under Section 127(2) of the Code. According to Mr. Ghosh, the decision in the divorce suit clearly proved that the wife deserted her husband since 1970 and in view of the said decision of a competent Civil Court, the order of maintenance is liable to be cancelled under Section 127(2) of the Code.

(3.) THERE is no manner of doubt therefore that in consequence of any decision of a competent Civil Court an order under Section 125 of the Code is liable to be cancelled if the said decision has a direct bearing on or overrides the order of maintenance. But the decision of the Civil Court in the instant case that the opposite party ceased to be the wife of the petitioner, does not in any way affect the right of the wife to receive maintenance in view of the extended meaning of 'wife' under the Code which includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. It is not the contention of the petitioner that the opposite party has remarried and consequently, notwithstanding the decree of divorce, the opposite party is entitled to get maintenance in the present case.