DALIP SINGH Vs. RAJBALA

JUDGEMENT

(1.) THIS revision is directed against the order passed by Sessions Judge, Narnaul, who while setting aside the order of JMIC Narnaul has allowed the application filed by the divorced wife Smt. Rajbala under Section 125 Cr.PC and granted maintenance to her at the rate of Rs. 1200/- per month.

(2.) THE facts in brief are that Smt. Rajbala filed a petition under Section 125 Cr.PC praying for grant of maintenance of Rs. 2000/- per month as she had no source of income. It was stated by her that the petitioner-husband was having an income of Rs. 10,000/- per month and was not maintaining her. Petitioner- husband filed written statement taking a stand that respondent-wife had intentionally left the petitioner and was staying with some other person and, accordingly, was not entitled to any maintenance. JMIC Narnaul dismissed the application filed by respondent-wife. The said order was impugned before Sessions Judge, Narnaul, who vide his order dated 25.4.2006, set aside the order of JMIC Narnaul and granted maintenance of Rs. 1200/- per month to respondent-wife from the date of application i.e. 31.5.2000. The same has been impugned in this revision petition. The petitioner has mainly challenged the order on the ground that the respondent wife Rajbala is living in adultery and as such in view of the provisions of Section 125(4) Cr.P.C. is not entitled to any maintenance as she is stated to be having an illicit relation with one Ishar Singh.

(3.) LEARNED counsel appearing for the petitioner has by referring to the provisions of Section 125(4) Cr.PC has urged that respondent would not be entitled to maintenance in this case as she is living in adultery. During the course of argument, counsel candidly stated that petitioner is ready and willing to maintain respondent in case she is prepared to leave the person with whom she is having adulterous relations. Counsel for respondent, on the other hand, has submitted that Section 125(4) Cr.PC has no applicability in the case of divorced wife and as such respondent Rajbala has been rightly granted maintenance in this case. Number of judgments have been cited by counsels, in support of their respective submissions. The counsel for petitioner has referred to Puliyulla Chalil Narayana Kurup v. Thayyulla Parambath Valsala, 2005(4) R.C.R.(Criminal) 565 (Kerala); Pola Venkateshwarlu v. Pola Lakshmi Devi and others, 2005(1) R.C.R.(Criminal) 1004 (A.P.); Chander Kumar Sharma v. Samriti Sharma, 1998(3) R.C.R(Criminal) 135 (P&H) and Ammasi v. Smt. Amaravathi, 1997(4) R.C.R.(Criminal) 301 (Madras). In Pulivulla Chalil Narayana Kurup's case (supra), Kerala High Court held that if after grant of maintenance, husband could establish that wife is living in adultery or that she has refused to live with him without sufficient reason then the Magistrate could cancel the order of maintenance. This was not a case where the wife had been divorced. There does not appear to be any doubt that provisions of Section 125(4) Cr.PC would clearly apply to a case of wife, who is either living in adultery or without any sufficient reason, has refused to live with her husband or in a case where they are living separately by mutual consent. The question in the present case requiring adjudication is whether the provisions of Section 125(4) Cr.PC would apply to a case of a divorced wife living in adultery etc. or not. In this regard, counsel for petitioner seems to be heavily relying upon the case of Pola Venkateshwarlu (supra). This was a case where wife had been divorced on the ground that she was living in adultery. Under this circumstance, it was held that since the divorce had been granted on the ground of wife living in adultery, wife would not be entitled to receive any maintenance allowance. This factual position is not available on record in this case. It is not clear from the record if the adultery was the ground of divorce in the instant case. This judgment may not strictly be alluded to the facts of the present case. It was then that learned counsel referred to Chander Kumar Sharma's case (supra) to say that divorced wife living in adultery would not be entitled to a maintenance. This was a case where Judicial Magistrate had granted maintenance to a wife which had been challenged in revision. During the pendency of the revision before this Court and having regard to the different view expressed, two questions were referred for opinion to the larger Bench namely:-