SHASHI ALIAS MALA Vs. STATE

JUDGEMENT

(1.) BOTH these Misc. Petitions arise out of impugned order dated 5. 8. 02 passed by the Special Judge (SC/st Prevention of Atrocities) Cases & Addl. Sessions Judge, Alwar whereby he has directed the Family Court to given an opportunity to both the husband the wife with regard to quantum of their salary and economic condition and to decide the quantum of the maintenance thereafter. Since both the petitions arise out of the same impugned order, they are being decided by this common order.

(2.) THE brief facts of the case are that the petitioner, Neeraj Sharma, was married to the respondent No. 1, Smt. Shashi @ Mala, on 14. 2. 94 in accordance with the Hindu rites. Subsequently, a daughter, respondent No. 2, was born to the couple. However, it seems that differences arose between the couple. Eventually, the wife left the metrimonial home and went back to her parental place. Since she was unable to support herself and the child, she filed an application under Section 125 of the Criminal Procedure Code (henceforth to be referred to as `the Code" for short ). THE Addl. Chief Judicial Magistrate No. 2, Alwar issued notice to the husband Neeraj Sharma, who subsequently filed his reply. In his reply he admitted the factum of the marriage and the birth of the daughter, but claimed that the husband and wife were divoreced by mutual consent vide decree dated 22. 5. 96. He, therefore, claimed that the wife was disentitled from claiming any maintenance under the provisions of Section 125 (4) of the Code. However, in order to prove her case the wife examined thereself and two other witnesses. In order to substantiate his case, the husband examined himself as a witness. After examining the oral testimony, vide order dated 8. 8. 98, the learned Chief Judicial Magistrate was pleased to direct the petitioner to pay a maintenance of Rs. 2,000/- to the wife and Rs. 2,000/- to the daughter. Since the petitioner was aggrieved by the said order, he filed a revision-petition before the District & Sessions Judge, THE said revision petition was eventually transferred to the Special Judge (SC & ST Prevention of Atrocities) Cases & Addl. Sessions Judge, Alwar. Vide order dated 5. 8. 02, the learned Judge remanded the case back to the Court of the Addl. Chief Judicial Magistrate and directed him to give an opportunity to both the parties to aduce evidence with regard to their salary/pay and economic conditions and to pass the order with regard to maintenance thereafter. THE learned judge also directed the petitioner to continue to pay the maintenance as directed by the learned Magistrate during the pendency of the case in the Court of Addl. Chief Judicial Magistrate. Since both the parties are aggrieved by the said order, they have filed the above mentioned petitions before us.

(3.) EXPLANATION B defines the word "wife" as "wife" includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Sub-section (4) reads as under:- " No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they sare living separately by mutual consent. "