GURMEET SINGH Vs. LOVELEEN KAUR

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure(hereinafter referred to as 'the Code') has been filed by Gurmeet Singh son of Sher Singh, petitioner, for quashing the orders dated 3.3.2009 (Annexure P-4) and 8.5.2009 (Annexure P-5) as well as for quashing of the petition under Section 125 of the Code (Annexure P-2) filed against him by the respondents, since his marriage with respondent No. 1 already stands dissolved by a decree of divorce on the ground of desertion and cruelty. According to the petitioner, his marriage was performed with Loveleen Kaur-respondent No. 1 on 16.12.1996 and from that wedlock, Gurleen Singh was born in the year 1997 whereas, Jasleen Kaur -respondent No. 2 was born on 20.1.2000. He was leading a normal life with respondent No. 1. All of a sudden, on account of the interference of her mother, she left the house along with the other respondent on 2.5.2002 and thereafter never returned to the matrimonial home. She joined the Orchestra Band Party as a dancing and singing girl and started going with the band party for giving shows in Dubai. He and his family members objected to that conduct of the respondent and he filed a petition for restitution of the conjugal rights. He did not pursue that petition as she was not willing to join his company and filed a divorce petition on the ground of cruelty and desertion under Section 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act'). Respondent No. 1 appeared in the Court of Mrs. Sukhwinder Kaur, Additional District Judge, Patiala, in that divorce petition and also participated in the re-conciliation proceedings but did not agree to join the matrimonial home in spite of the persuasions made by the Presiding Officer. She moved an application under Section 24 of the Act, in that petition, for the grant of maintenance. Thereafter, she stopped coming to the court and ultimately, ex-parte decree was passed against her on 16.2.2008 and the divorce was granted on the ground of desertion and cruelty. No appeal was filed against that judgment and decree and the same has attained finality. He also filed an application under Section 6 of the Hindu Minority & Guardianship Act, 1956, for the custody of the minor daughter whereas, respondent No. 1 filed a similar application for the custody of the son. His application was dismissed whereas the application filed by respondent No. 1 was allowed by the Guardian Judge. She filed an application under Section 125 of the Code for grant of maintenance and interim maintenance in the court of JMIC, Patiala. As she had joined the Orchestra Band party as a dancing and singing girl,so she did not pursue that application. However, after the passing of the decree of divorce against her, the case was taken up for the grant of ad interim maintenance. He moved an application before the Judicial Magistrate for the dismissal of the application for maintenance allowance on the ground that the decree of divorce has already been passed against respondent No. 1. That application was dismissed by the Judicial Magistrate. He moved another application before the Magistrate that the remedy of respondent No. 1 is only by way of application under Section 25 of the Act. As a result of the passing of the decree the continuation of the proceedings in the application for maintenance allowance had become meaningless. However, that application was also dismissed. The orders are against the provisions of Section 125(4) of the Code.

(2.) Notice of the petition was given to the respondents, who came present and filed their reply. According to them, respondent No. 1 was being maltreated by the petitioner, along with family members for having brought inadequate dowry articles and he was addicted to intoxicants. Respondent No. 1 has not joined any such Orchestra Band party and that fact has been taken note of by the Civil Judge(Senior Division), while deciding the application under Section 6 of the Hindu Minority & Guardianship Act, 1956. Respondent No. 2 can ask for maintenance allowance even if there is any such decree of divorce in favour of the petitioner. Respondent No. 1 never deserted the petitioner and, therefore, is entitled to the maintenance allowance under Section 125 of the Code. It has been submitted by the counsel for the petitioner that the decree of divorce was passed by the matrimonial court, which has attained finality. It has already been decided by that court that respondent No. 1 deserted the petitioner without any reasonable cause. That finding operates as specific bar for the grant of maintenance allowance to respondent No. 1, in view of Section 125(4) of the Code. He has placed reliance on Satyawan laxman Jagtap v. Vimal Satyawan Jagtap and others 2000 (1) Civil Court Cases 611 and Smt. Birwati v. Dharam Singh 2004(3)RCR (Criminal) 272.

(3.) On the other hand, it has been contended by the learned counsel for the respondents that the decree of divorce obtained by the petitioner was an ex parte decree and as such, respondent No. 1 is not bound by any finding recorded therein. The main ground taken by the petitioner in the application under Section 125 of the Code was that respondent No. 1 joined the Orchestra Band Party as a dancing girl and after joining that band party, she deserted him. A finding has already been recorded by the Guardian Judge that she never joined any such band party. She being the legally wedded wife of the petitioner, is entitled to maintenance allowance and the same was correctly granted by the Judicial Magistrate. It is not disputed that a decree of divorce was passed against respondent No. 1 in the petition filed by the petitioner under Section 13 of the Act on the ground of desertion. It does not make any difference if that was an ex parte decree or a decree passed on merits. An ex parte decree, till the same is set aside, is as good as a decree obtained on merits. The finding of the matrimonial court is binding upon the parties. It was held by that matrimonial court that respondent No. 1 deserted the petitioner without any reasonable cause.