HIGH COURT OF RAJASTHAN
Bench: JUSTICE R.S. Chauhan
Shashi alias Mala
State and Anr. On 27 Mar 2006
1. Both these Misc. Petitions arise out of impugned sequence antiquated 5.8.02 upheld by a Special Judge (SC/ST Prevention of Atrocities) Cases Addl. Sessions Judge, Alwar whereby he has destined a Family Court to given an event to both a father a mom with courtesy to quantum of their income and mercantile condition and to confirm a quantum of a upkeep thereafter. Since both a petitions arise out of a same impugned order, they are being motionless by this common order.
2. The brief contribution of a box are that a petitioner, Neeraj Sharma, was married to a respondent No. 1, Smt. Shashi @ Mala, on 14.2.94 in suitability with a Hindu rites. Subsequently, a daughter, respondent No. 2, was innate to a couple. However, it seems that differences arose between a couple. Eventually, a mom left a matrimonial home and went behind to her parental place. Since she was incompetent to support herself and a child, she filed an focus underneath Section 125 of a Criminal Procedure Code (henceforth to be referred to as ‘the Code” for short). The Addl. Chief Judicial Magistrate No. 2, Alwar released notice to a father Neeraj Sharma, who subsequently filed his reply. In his respond he certified a factum of a matrimony and a birth of a daughter, though claimed that a father and mom were divorced by mutual agree vide approach antiquated 22.5.96. He, therefore, claimed that a mom was disentitled from claiming any upkeep underneath a supplies of Section 125(4) of a Code. However, in sequence to infer her box a mom examined there self and dual other witnesses. In sequence to justify his case, a father examined himself as a witness. After examining a verbal testimony, vide sequence antiquated 8.8.98, a schooled Chief Judicial Magistrate was gratified to approach a postulant to compensate a upkeep of Rs. 2,000/- to a mom and Rs. 2,000/- to a daughter. Since a postulant was depressed by a pronounced order, he filed a revision-petition before a District Sessions Judge. The pronounced rider petition was eventually eliminated to a Special Judge (SC ST Prevention of Atrocities) Cases Addl. Sessions Judge, Alwar. Vide sequence antiquated 5.8.02, a schooled Judge remanded a box behind to a Court of a Addl. Chief Judicial Magistrate and destined him to give an event to both a parties to cite justification with courtesy to their salary/pay and mercantile conditions and to pass a sequence with courtesy to upkeep thereafter. The schooled decider also destined a postulant to continue to compensate a upkeep as destined by a schooled Magistrate during a pendency of a box in a Court of Addl. Chief Judicial Magistrate. Since both a parties are depressed by a pronounced order, they have filed a above mentioned petitions before us.
3. Mr. Harendra Singh, schooled Counsel for a petitioner, has argued that according to Section 125(4) in box a mom is divorced on a belligerent of mutual consent, she becomes disentitled to any maintenance. Therefore, according to him, given a divorce approach on a belligerent of mutual agree was upheld by a Family Court, mom can't explain any upkeep from a husband. He has serve argued that while entering into a divorce by mutual consent, a mom had already perceived Rs. 20,000/- by approach of permanent subsistence and had taken a whole ‘Stridhan’ with her. Once a permanent subsistence is paid, afterward a father need not compensate any upkeep to a wife. He has serve contended that a mom is already employed as a Teacher Gr. III and is earning sufficient volume to say herself and a child. Hence, a postulant need not support a wife.
4. On a other hand, Mr. Anoop Dhand, a schooled Counsel for a respondent-wife, has argued that a divorce by mutual agree was procured by personification rascal on a Court. According to him a mom never seemed before a Family Court, never sealed a focus for mutual consent. He has serve settled that a pronounced divorce approach is underneath plea before a suitable Court. Therefore, a pronounced divorce approach that was procured-through rascal can't disentitle a mom from her legitimate maintenance. According to him a mom is totally contingent on her relatives and is incompetent to support herself and a child. The schooled Counsel has denied a factum of a mom being employed as a Teacher Gr. III. Moreover, While ancillary a petition filed on interest of a wife; a schooled Counsel has argued that there was no prerequisite to remand a box behind to a Court of a Addl. Chief Judicial Magistrate as underneath Section 391 of a Code, a Appellant Court has sufficient energy to take serve justification and to inspect a same. Therefore, a impugned sequence deserves to be set aside.
5. We have listened a schooled Counsel for a parties and have perused a impugned orders.
6. Section 125(1) of a Code reads as under:
125. Order for upkeep of wives, children and parents, – (1) If any chairman carrying sufficient means neglects or refuses to maintain-
(a) his wife, incompetent to say herself, or
(b) his legitimate or deceptive teenager child, either married or not, incompetent to say itself, or
(c) his legitimate or deceptive child (not being a married daughter) who has achieved majority, where such child is, by reason of any earthy or mental monstrosity or damage incompetent to say itself, or
(d) his father or mother, incompetent to say himself or herself,
a Magistrate of a initial category may, on explanation of such slight or refusal, sequence such chairman to make a monthly stipend for a upkeep of his mom or such child, father or mother, during such monthly rate not surpassing 5 hundred rupees in a whole, as such court thinks fit, and to compensate a same to such chairman as a Magistrate might from time to time direct:
Provided that a Magistrate might sequence a father of a teenager womanlike child referred to in Clause (b) to make such allowance, until she attains her majority, if a Magistrate is confident that a father of such teenager womanlike child, if married, is not hexed of sufficient means.
7. Explanation B defines a word “wife” as “Wife” includes a lady who has been divorced by or has performed a divorce from her father and has not remarried. Sub-section (4) reads as under-
No mom shall be entitled to accept an stipend from her father underneath this territory ‘if she is vital in adultery, or if, but any sufficient reason, she refuses to live with her, husband, or if they are vital alone by mutual consent.
8. A holistic reading of a supplies would clearly exhibit that in box a mom is divorced on a belligerent of mutual consent, afterwards she is disentitled from claiming any upkeep or halt upkeep and losses of record from a husband. Unfortunately a pronounced sustenance has not been beheld by a schooled Magistrate while flitting a sequence antiquated 1.2.02. In a pronounced sequence he has celebrated that a divorce on a belligerent of mutual agree would not disentitle a mom from claiming a maintenance. Such an courtesy is clearly opposite a supplies of Section 125(4) of a Code. However, as a divorce approach on a belligerent of mutual agree is underneath challenge, it is for a schooled Magistrate to cruise a outcome of such plea on a maintainability or non-maintainability of a focus underneath Section 125 of a Code.
9. There is positively a brawl with courtesy to a fact either mom is employed or not and about a quantum of salary, if any, being perceived by her. There is also a brawl about a volume of income being perceived by a husband. Therefore, a schooled Judge had righteously remanded a box behind to a schooled Judicial Magistrate to confirm a quantum of a income being warranted by both a parties. Hence, there is zero bootleg about a sequence antiquated 5.8.2002.
10. In a outcome we find no consequence in both a petitions. They are, therefore, dismissed. However, we approach a schooled Judicial Magistrate to confirm a box gripping in perspective a supplies of Section 125(4) of a Code and to pass his visualisation within a duration of dual months from a date of a receipt of this order. A duplicate of this sequence shall be sent immediately to a endangered Court during Alwar. The postulant father is destined to continue to make a remuneration of upkeep to a mom during a march of a record before a schooled Judicial Magistrate.