NARAIN LAL Vs. DIWALI AND ANOTHER

JUDGEMENT

(1.) This revision petition is directed against the order dated 27-11-93, passed by the Munsif and Judicial Magistrate, First Class, Sumerpur, by which the learned Magistrate dismissed the application under Sections 125(3), 125(4) and 127(2) of the Code of Criminal Procedure filed by petitioner Narain Lal - the husband of non-petitioner No. l Smt. Diwali and the father of non-petitioner No. 2 Mr. Praveen.

(2.) Applicant Smt. Diwali filed an application in the Court of the learned Munsif and Judicial Magistrate, First Class, Sumerpur, under Sec. 125 Crimial P.C. for the grant of maintenance to herself being the wife as well as to her son Praveen being the minor son of the petitioner-husband Narain Lal. It has been alleged in the application that applicant Smt. Diwali has been turned-out along with the minor son from the house of Narain Lal (the husband) and she is unable to maintain herself as well as to her minor son and the petitioner has sufficient means and, therefore, the husband may be directed to pay maintenance to the applicant and her minor son. Along with the application under Sec. 125 Crimial P.C., an application for the grant of interim maintenance was, also, moved by the applicants. The learned Magistrate awarded a sum of Rs. 250.00 per month to applicant Diwali and Rs. 150 per month to applicant No.2 Praveen (the son) as interim maintenance by its order dated 18-2-92. This order of granting interim maintenance, passed by the learned Magistrate, was challenged by the husband before the Additional Sessions Judge, Bali, by way of filing a revision petition. The revision petition, filed by the petitioner-husband was partly allowed by the learned Additional Sessions Judge vide its order dated 11-7-92. The order of granting interim maintenance was maintained; however, the award of interim maintenance to applicant Snit. Diwali was reduced from Rs. 250.00 per month to Rs. 175.00 per month and of Praveen from a Rs. 150.00 per month to Rs. 75.00 per month. Dissatisfied with the order dated 11-7-92, passed by the learned Additional Sessions Judge, Bali, applicant Smt. Diwali and Praveen filed a miscellaneous petition before the High Court. Both the miscellaneous petitions were heard together and disposed of by the judgment dated 19-8-92, maintaining the order passed by the learned Additional Sessions Judge, Bali. However, it was directed that the petitioner will pay Rs. 500.00 to the applicants as costs and Rs. 500.00 as expenses incurred by her for coming twice to this Court for the purpose of reconciliations. When these proceedings under Sec. 125 Crimial P.C. were in progress, the petitioner filed an application under Sec. 13 of Hindu Marriage Act for the dissolution of the marriage. The suit of the petitioner dissolution of marriage was decreed by the learned Additional District Judge, Bali, by its decree and judgment dated 1-7-92, and a decree for divorce was passed in favour of the petitioner. After the decree of dissolution of marriage, the petitioner moved applications under Sections 125(3), 125(4) and 127(2) Crimial P.C. for cancelling the order granting interim maintenance to the wife and the son on the ground that after the decree of divorce granted in favour of the petitioner on 1-7-92, applicant Diwali cannot be said to be the wife of the petitioner and she is, therefore, not entitled for any maintenance. This application, filed by the petitioner-husband Narain Lal was contested by the wife and the son and the learned Magistrate, vide its order dated 27-11-93, dismissed the application, filed by the petitioner and directed him to pay the maintenance to the wife and the son. It is against this order that the petitioner has preferred this revision petition.

(3.) It is contended by the learned counsel for the petitioner that when once the decree of divorce has been passed in favour of the petitioner on the ground of desertion then the applicant-wife is not entitled for the grant of any maintenance and the order, passed by the learned Magistrate on the application under Sec. 125 Cr.P.C, therefore, deserves to be quashed and the petitioner cannot be forced to make payment of the amount of interim maintenance. It has further been contended by the learned counsel for the petitioner that this decree of dissolution of marriage, passed in favour of the petitioner, was challenged by the non-petitioners before this Court and the same was dismissed by the High Court and, therefore, the learned Magistrate was not justified in dismissing the application filed by the petitioner as the wife was living separately from the petitioner without any reasonable cause. The learned counsel for the non-petitioners, on the other hand, has supported the order passed by the learned Magistrate.