STAYA NARAIN SHARMA Vs. VANDANA

JUDGEMENT

(1.) This is a miscellaneous appeal against the order dated 27th Sept., 1988 of the Judge, Family Court, Ajmer in Family Court Case No.47/1988. Under the aforesaid order the learned Judge, Family Court dismissed the application filed under Sec. 125, (3) Crimial P.C. by the respondent herein.

(2.) By an order made under Sec. 125.00, Cr. P.C. on 15th May, 1981, maintenance of Rs. 125.00 per month was ordered to be paid by the petitioner to the ton-petitioner. The revision filed against the aforesaid order did not succeed and it was ordered to pay Rs. 125.00 per month as maintenance and Rs. 125.00 per month as arrears of maintenance which had accrued till then. It was also ordered that in case the petitioner makes default in payment of instalment, the entire amount shall be recovered. It appears that after 19th July, 1986, the appellant-husband did not make any payment towards maintenance. An application was filed by the respondent-wife before the Family Court that the appellant- husband is not paying the amount of maintenance as ordered by the said Court and he be directed to make payment of maintenance. In reply, the appellant herein raised a plea that since he was ready to keep the respondent wife with him, but she declined, no order for maintenance can be made. The learned Judge considered the offer of the appellant to maintain his wife on the condition that she returns to her husband's home.The learned Judge, Family Court considered the offer as not genuine and made an order for maintenance.

(3.) We have gone through the order of the learned Judge, Family Court. A look at proviso to sub-section (3) of section 125, Crimial P.C. will show that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, Against the Judgment of the Judge Family Court, Ajmer dated 27th Sept. 1988, passed in Family Court Case No. 47/1988. and may make an order under this section not with standing such offer, if he is satisfied that there is just ground for so doing. Therefore, it is for the Magistrate to consider the ground of refusal and satisfying with regard to the existence of just ground, he may make an order to payment of maintenance. A look at the order of the learned Judge, Family Court shows that the offer of the husband on the condition of living with him, the learned Magistrate has observed that the offer has been made by the petitioner only in response to the application filed under Subsection (2) of Sec. 125, Cr.P.C.,otherwise there does not appear to be any genuine wish of the petitioner-husband to maintain her. The learned Magistrate has also observed that except giving notice, the petitioner did not take steps towards keeping his wife with him.