JASHELAL AGRAWAL ALIAS JAIN Vs. PUSPABATI AGRAWALA

JUDGEMENT

(1.) This revision application is directed against the judgment dated 26-3-1996 in Criminal Misc. case No. 41 of 1980 of the court of Judicial Magistrate 1st class, Kantabanji.

(2.) Opposite party was the legally married wife of the petitioner. Their marriage was solemnised on 17-5-1970. On 28-8-1980, opposite party filed a petition under Section 125 of the Criminal Procedure Code, 1973 (in short, 'the Code') claiming for maintenance on the ground of ill-treatment, cruelty and desertion and that she had no means to sustain her life whereas the petitioner is an earning person and capable of providing maintenance. On 4-1-1992 opposite party's claim for maintenance was allowed. Petitioner approached this Court in Criminal Misc. case No. 2291 of 1992 under Section 482 of the Code via the court of Addl. Sessions Judge, Titilagarh in Criminal Revision No. 6/9 of 1992. After filing of the petition u/s. 125 and before the J. M. F.C., Kantabanji could pass the order for maintenance on 4-1-1992, there were several rounds of civil litigations between the parties. Petitioner's case for restitution of conjugal right/divorce vide Title Suit No. 14 of 1980 was decreed in favour of the petitioner on the ground of desertion by the opp. party. On the other hand, T. S. No. 33 of 1980 filed by the opp. party claiming for maintenance was dismissed for default. Similarly, T. S. No. 15 of 1984 filed by her to set aside ex parte decree of divorce in T. S. No. 14 of 1980 was also dismissed for default. Notwithstanding that learned Magistrate allowed the prayer for monthly maintenance in favour of the opp. party which was confirmed by the Addl. Sessions Judge, Titlagarh in the aforesaid Criminal Revision. This Court in Criminal Misc. case No. 2291 of 1992 while examining legality of the said orders of maintenance held that -"

(3.) There is no dispute regarding the position that the right of a wife for maintenance is an incidence of the status or estate of matrimony, that according to the test of Hindu Law to which the parties belong, the obligation to maintain the wife arises from the very existence of the relationship between the parties and that apart from the liability which the husband incurs under personal law of maintaining his wife, the provisions of Sec. 125, Cr. P.C. independently vest the statutory right in a wife to claim maintenance from her husband see (1986) 62 CLT 92 (Saraswati Meher v. Jadumani Meher) and that a divorced wife otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under Sec. 125 (1), Cr. P.C. see AIR 1979 SC 362 : (1979 Cri LJ 151) (Bai Tahira v. Ali Hussain Fissali Chothia and another). It is also not disputed that no wife shall be entitled to receive maintenance from her husband under Sec. 125, Cr. P.C. if she refuses to live with her husband without any sufficient reason which principle is incorporated in sub-sec. (4) of Sec. 125. ...