JASHOLAL AGRAWALA ALIAS JAIN Vs. PUSPABATI AGRAWALA

JUDGEMENT

(1.) The question on which the fate of this case hinges is whether, in the facts and circumstances of the case, the wife's claim for maintenance against her husband is entertainable. To be more specific, whether in view of the decree passed by the Civil Court granting the husband's prayer for divorce on the ground of desertion by wife and dismissal of the suit filed by the wife claiming maintenance from her husband in the proceeding under Section 125 of the Code of Criminal Procedure is maintainable.

(2.) The petitioner Sri Jasholal Agrawal alias Jain is the husband of the opposite party Smt. Puspabati Agrawala. In this application filed under Section 482 of the Cr.P.C., the petitioner has assailed the order of the learned Magistrate, First Class, Kantabanji in C.M.C. No. 41 of 1980 granting the prayer of the opposite party for maintenance and directing him to pay Rs.300/- per month from the date of filing of the petition which was confirmed by the learned Addl. Sessions Judge, Titilagarh by the order dated 24-11-92 in Criminal Revision No. 6/9 of 1992. The criminal case was registered on the application filed by the opposite party under Section 125, Cr.P.C. claiming maintenance from the petitioner at the rate of Rs. 500/ - per month. It is the case of the opposite party that she is the legally married wife of the petitioner; that their marriage was solemnised on 17-5-70 as per prevailing caste customs and rituals; that after marriage both of them lived together as husband and wife for a short period whereafter the petitioner started ill-treating her on the plea of insufficiency of dowry. He assualted her, declined to provide her food and clothing and on 27-4-71 the petitioner and his mother tried to burn her by sprinkling kerosene on her body. In such situation her father brought her to his house where she spent about three years. Thereafter, on the request of the father of the petitioner, the intervention of local gentlemen and on the assurance given by the petitioner that there will be no occassion for complaint due to ill treatment or assualt on her, the opposite party agreed to come to the house of the petitioner. But in reality after a short time she was subjected to assault and ill treatment as before and when such ill treatment became unbearable, the opposite party was again taken back to her father's house in 1974. Since then she has been living with her parents. The petitioner has neither made any attempt to take her back to his house nor cared to make any provision for her maintenance. Since the opposite party has no means to maintain herself and the petitioner has adequate means, to maintain her she prayed for maintenance from him at the rate of Rs. 500 / per month. She alleged that he owned two pucca houses and a rice mill at Balasore from which his monthly income is around Rs. 1000/ -.

(3.) The petitioner in his objection admitted his marriage with the opposite party, but denied the allegations of assault, ill treatment on account of demand of dowry, etc. He took the plea that the opposite party has left his house voluntarily and has chosen to stay away from him without any justification and without sufficient reason. The petitioner also denied the allegation made by the opposite party regarding his properties and income and stated that due to the unhappy family life due to the conduct of the opposite party he has not been able to do any work and his income has dwindled to about Rs. 500/- per month. The petitioner in his objection also challenged the maintainability of the petition for maintenance on the ground that the opposite party had filed a suit, T.S. No. 33 of 1980 in the court of Subordinate Judge, Titilagarh for maintenance and the petitioner had filed a suit, T.S. No.14 of 1980 in the court of Subordinate Judge, Fatnagarh for restitution of conjugal life or in the alternative for divorce. The suit for maintenance filed by the opposite party was dismissed and the suit filed by the petitioner for restitution of conjugal life/divorce was decreed and a decree for divorce was granted. "