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No Maintenance – Wife had Sufficient Means to Maintain Herself

HIGH COURT OF MADHYA PRADESH

Decided on April 21,1998

KUNTIBAI W/O ALAKHRAM Appellant

VERSUS

ALAKHRAM S/O JAGGULAL

Bench: JUSTICE V.K. Agrawal

This application Under Section 482 of Criminal Procedure Code is directed against the order dated 29-1-1998, in Cr. Rev. No. 43/94, by 1st A.S.J., Durg, affirming the order dated 20-1-1994 in Cri. Case No. 72/93, by Judicial Magistrate First Class, refusing to grant maintenance to the petitioner/wife.

2. The petitioner/wife who was married to the non-applicant/husband about 30 years prior to the filing of the application had four daughters from him, alleged that the non-applicant/husband has refused to maintain her for the last 12 years, and that she is unable to maintain herself, as she is a labourer. It was alleged by her that the non-applicant/husband had developed illicit relations with another woman, on account of which, he started misbehaving and torturing the petitioner/wife and turned her out from his home.

3. The learned Judicial Magistrate First Class before whom application Under Section 125, Criminal Procedure Code was filed, has found that there was no justification for the petitioner/wife to live separately from the non-applicant/husband, and that the non-applicant/husband has no means to maintain the petitioner/wife. It was further held that the petitioner/wife had sufficient means to maintain herself, accordingly her petition for grant of maintenance was dismissed.

4. In revision, the learned Addl. Sessions Judge found that the application was inordinately delayed and had been filed after about 12 years after she started living separately from the non-applicant/husband. The findings of the lower court that there was no justification for the petitioner/wife to live separately from the non-applicant/husband, were also confirmed by the learned Addl. Sessions Judge. It has also been held that the non-applicant/husband did not marry another woman, till the petitioner/wife was living with him as his wife and his second marriage with another woman took place after 4-5 years after the petitioner/wife had left him without any justification. In view of above, it was held that there was no merit in the revision and it was accordingly dismissed.

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5. Learned counsel for the petitioner/wife has urged that no period of limitation is prescribed for filing an application for maintenance, and therefore, her petition could not have been dismissed on that ground. He has placed reliance on Ambaram v. Jankibai, 1991 (II) MPWN 121 and on Golla Seetharamulu v. Golla Rathanamma, 1991 Cr.LJ. 1533

6. It may be noticed in the instant case that the petition for maintenance was filed after a period of about 12 years, after the alleged refusal or neglect by the non-applicant/husband to maintain the wife. No explanation whatsoever has been offered by the petitioner/wife for the inordinate delay as above, in filing the application for maintenance.

7. In Bhaggo Bai v. State of M.P., 1984 MPWN Note 504 it was observed by this Court that the remedy Under Section 125 of Criminal Procedure Code is intended to be speedy remedy for the protection of a deserted wife or a neglected child from starvation, while the civil liability of the father or the husband to maintain his child or wife has to be determined by the Civil Court in accordance with the personal law applicable to the parties. The functions of the Magistrate and the Civil Court are distinctly different. The Magistrate has to deal with the emergency while the Civil Court is to enforce strict legal rights according to personal law of the parties. A wife, who files an application after maintaining herself for 10 or 15 years, certainly is not entitled to get relief under the emergency provisions of Section 125 of Code of Criminal Procedure. The powers vested in the Magistrate Under Section 125 of Criminal Procedure Code are discretionary. If there is inordinate delay in filing an application Under Section 125 of Criminal Procedure Code, by the wife, without there being any cogent reason or explanation for the delay; the Magistrate in the judicious exercise of discretion, would be fully justified in dismissing the application Under Section 125 of Criminal Procedure Code.

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8. In Ambaram’s case (supra) relied upon by the learned counsel for petitioner/wife, the wife had after a period of 12 years of separately residing again started to live with the husband and had also conceived from him. Thereafter, due to neglect of husband again, the wife was compelled to prefer an application for grant of maintenance. It was held in these circumstances that it cannot be said that the petition was filed belatedly by her, and accordingly the wife could not be faulted with therefor.

9. Learned counsel for the petitioner/wife has relied upon the decision of Andhra Pradesh High Court in Golla Seetharamulu v. Golla Rathanamma and Anr., 1991 Cr.LJ. 1533. In that case, it has been observed that for claiming maintenance Under Section 125 of the Criminal Procedure Code, no period of limitation is provided. That being so, the petitioner husband was not entitled to plead that the wife had waived her right to claim maintenance due to the long lapse of 10 or 12 years, after she left the matrimonial house. It was further observed that due to the changed circumstances in her parents’ house, as her parents were no longer willing to maintain her further, as other children of the household had grown up and also as some other problems had crept up in the family, wife was entitled to claim maintenance. However, in the instant case, no such changed circumstances and no justification for inordinate delay in filing the application for maintenance, has been pleaded or proved. Therefore, the above observation made in the peculiar circumstances of that case by the Andhra Pradesh High Court would not be of any assistance to the petitioner’s case.

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10. Besides the long delay in filing the application it has been found by the Courts below that the petitioner/wife had no justification for living separately from her husband and that she had sufficient means to maintain herself as she had resources by way of agriculture income which was sufficient to meet her needs. Thus, the above facts and circumstances clearly negative her claim to seek maintenance.

14. Therefore, the discretion exercised by the Courts below in rejecting the application of the petitioner/wife for the grant of maintenance, in the circumstances of the case, cannot be termed as arbitrary or manifestly unjust. There appears to be no reason for interference in the impugned order, as no circumstances of exceptional nature exist calling for the exercise of inherent powers of this Court Under Section 482 of Criminal Procedure Code. Therefore, the petition has no merit and the same is dismissed.

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