HEM RAJ Vs. URMILA DEVI

JUDGEMENT

(1.) The respondents herein filed a petition under Section 125 of the Code of Criminal Procedure on 25/2/1993 on the file of the Additional Chief Judicial Magistrate Hamirpur for maintenance. The first respondent is the wife of the petitioner and respondent Nos. 2 to 4 are the children born out of the wedlock. The allegation of the pt respondent was that her husband- petitioner herein had neglected and refused to maintain the respondents without any lawful excuse despite having sufficient means of in come whereas according to her she had no source of income to maintain herself and the children. The Additional Chief Judicial Magistrate found that the 1st respondent had no valid excuse to be away from the husband and as such she is not entitled to maintenance from him. However he proceeded to grant maintenance in favour of the three children at the rate of Rs. 250.00 per month. The petitioner did not challenge that order; as he was willing to pay maintenance to the children. The first respondent challenged the order by filing Criminal Revision No.1 of 1996 on the file of the Sessions Judge Hamirpur. The Sessions Judge has reversed the order of the Additional Chief Judicial Magistrate in so far as it is related to the maintenance claimed by the 1st respondent herein. Consequently she directed the petitioner herein to pay a sum of Rs. 2001- per month by way of maintenance to the 1 st respondent from the date of the decision of the trial Court i.e. 18-11-1995.

(2.) The aggrieved husband had preferred this revision petition during the pendency of the proceeding, before the Additional Chief Judicial Magistrate. The petitioner herein had filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on the file of the Senior Sub Judge. Hamirpur. That proceeding was instituted on 17-4-1993 and after contest. it was disposed of on 30-6-1995. The Civil Court found that she 1st respondent had no reasonable or just cause for withdrawing, herself from the society of the petitioner herein. Consequently, the Senior Sub Judge passed a decree for restitution of conjugal rights, as prayed for by the petitioner herein. Admittedly, that, decree has become final as it has not been challenged by way of appeal by the 1st respondent. It is recorded in the judgment of the Civil Court in paragraph 8 that the 1st respondent had stated before the Court that she was ready to accompany the husband, but she contested the proceedings and a decree has been passed for restitution of conjugal rights.

(3.) In this revision petition learned counsel for the petitioner contends that once the Civil Court has gone into the matter and given findings that the Pt respondent had no reasonable or just cause for withdrawing herself from the society of the husband, then the Criminal. Court cannot grant maintenance in her favour on the footing that the husband had neglected or refused to maintain her. The order of the Civil Court was marked as Ex. RX before the Additional Chief Judicial Magistrate. The revisional Court while referring to the said order held that in spite of the order for restitution of conjugal rights, it is open to the Criminal Court to consider the claim of maintenance and grant the same. The revisional Court has also taken into account a circumstance that maintenance was being laid by an order passed by the Army Authorities at a time, when the petitioner herein was serving in the Army on a representation made by the 1st respondent herein. It is not in dispute that the petitioner herein was making payments from 1989 by virtue of the said order of maintenance passed by the Army Authorities.