LAWS(ORI)-2006-4-53

DEBARAJ PATRA Vs. RADHA PATRA

Decided On April 20, 2006
Debaraj Patra Appellant
V/S
Radha Patra Respondents

JUDGEMENT

(1.) THE petitioner in this writ application challenges the legality of the orders passed by the learned S.D.J.M., Jeypore as well as Revisional Court granting maintenance to the opposite party in an application under Section 125 Cr.P.C..

(2.) THE case of the opposite party is that she is legally married wife of the petitioner and their marriage was solemnized in the year 1981 as per Hindu rites and customs. They lived together happily till 1991. In the year 1992, the petitioner sold all his properties in his village Humuki in the district of Ganjam and left for Koraput leaving the opposite party in her parents house. The further allegation of the opposite party is that though the petitioner had proposed to take her to Koraput but he never did so and in spite of requests made by her and her father on several occasions, she was not taken to Koraput by the petitioner. After some years, the petitioner filed a suit for judicial separation in the Court of the learned Civil Judge (Sr. Division), Jeypore in O.S. No.54 of 1997 and could obtain an ex parte decree against the opposite party and subsequently he married to another lady on 10.12.1998. The specific allegation is that the petitioner not only deserted her but also does not pay anything for her maintenance. The petitioner contested the said proceeding denying the allegation made against him and specifically pleaded that after six months of their marriage, the opposite party left for her matrimonial home and started staying with her father and in spite of repeated efforts made by the petitioner, she did not come back.

(3.) THE learned counsel appearing for the petitioner challenged both the orders solely on the ground that in the suit filed by the petitioner for divorce an ex parte decree was passed and it was found by the civil Court that the opposite party had deserted the petitioner. It was further contended that since the civil Court found that the opposite party had deserted the petitioner, the same was binding on the learned S.D.J.M. and a different conclusion could not have been arrived at by the learned S.D.J.M. In this connection, reference may be made to a decision of the Apex Court in the case of Rohtash Singh vrs. Smt. Ramendri and others reported in AIR 2000 S.C. 952. In the said decision, the Apex Court held that a divorced woman continues to enjoy the status of a wife for claiming maintenance and the plea that divorce was on account of desertation by wife is irrelevant. The facts of the said reported case fit in to the facts of the present case. The learned counsel for the petitioner tried to bring a distinction stating that in the reported case suit for divorce was filed when an application for maintenance under Section 125 Cr.P.C. was pending consideration, whereas in the present case only after disposal of the suit for divorce, the application for maintenance under Section 125 Cr.P.C. was filed. The Apex Court in the aforesaid case has clearly held that even after the divorce a woman continues to enjoy the status of a wife so long as she is not married and, therefore, even if the divorced is on the ground of desertation by the woman, the same is irrelevant for the purpose of granting maintenance under Section 125 of the Code of Criminal Procedure. The Apex Court has further held that when there is a finding of the civil Court that desertation was by the woman, maintenance would not be granted to her for the period prior to such decree for divorce but maintenance can be granted for the period thereafter. The principles laid down in the aforesaid decision have also been followed in some other cases by different High Courts and one of such case is the case of Darshan Pal vrs. Smt. Darshana reported in 1986 Criminal Law Journal 48. In view of the above decision of the Apex Court as stated earlier, the opposite party should be entitled to maintenance. The trial Court has granted maintenance of a sum of Rs.250/ - per month. The learned counsel for the petitioner submitted that the opposite party is working as cook in a Girls Hostel and, therefore is not entitled to maintenance. The petitioner never took such a stand in the objection filed before the trial Court. There is absolutely no material available on record to show that the opposite party is working as cook in a Girls Hostel. Considering the income of the petitioner, the trial Court has granted maintenance of Rs.250/ - per month and I do not find any justification to interfere with the quantum of maintenance. The Court has directed for payment of maintenance to the opposite party from the date of application i.e. 13.1.1999. The decree for divorce was granted on 29.4.1998. Therefore, in this regard also, the order passed by the Courts below, do not call for interference.