SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sh. Kanhaiya Lal vs Smt. Himachali Devi on 27 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 305 of 2017

.
Date of decision: 27.12.2017

Sh. Kanhaiya Lal …Petitioner.

Versus

Smt. Himachali Devi …Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Devender Sharma, Advocate.

For the Respondent : Mr. H.S. Rangra, Advocate.

Justice Tarlok Singh Chauhan, Judge (Oral)

The petitioner is the husband who aggrieved by the

order of enhancement of maintenance allowance in favour of his

wife (respondent herein) has filed the instant petition questioning

the said order.

2. The relationship between the parties is not denied

and one of the points that is strongly urged by learned counsel

for the petitioner is that on failure of wife to join the company of

the husband in a decree for restitution of conjugal rights, she is

not entitled to claim any maintenance much less enhanced

amount of maintenance.

1

Whether the reporters of the local papers may be allowed to see the
Judgment? Yes.

30/12/2017 22:58:42 :::HCHP
2

3. It would be noticed that the respondent had initially

filed petition under Section 125 Cr.P.C. for award of monthly

.

maintenance, however, the same was dismissed as

compromised. Later on, the respondent again filed petition for

maintenance, the same was allowed vide order dated

26.10.2006, whereby she was awarded monthly maintenance at

the rate of Rs.400/- per month.

4.

Section 127
r Cr.P.C.

The respondent thereafter filed an application under

for enhancement of

maintenance, however, the same was dismissed by the learned
the monthly

Trial Magistrate as not maintainable in view of the findings of the

Civil Court recorded in judgment dated 27.07.2006 whereby the

petition filed by the husband under Section 9 of the Hindu

Marriage Act (for short the ‘Act’) for decree of restitution of

conjugal rights has been passed against the wife on a specific

issue “whether respondent without reasonable cause has

withdrawn herself from the society of the petitioner as alleged”

and it was further observed that these findings had not been

disturbed in FAO No. 343 of 2006, titled Smt. Himachali Devi vs.

Kanhya Lal, preferred by the respondent before this Court and

had been dismissed on 19.04.2012.

5. However, in revision preferred before the Court of

learned Sessions Judge, the application filed by the respondent-

30/12/2017 22:58:42 :::HCHP
3

wife came to be allowed and the maintenance amount was

enhanced to Rs.3000/- per months by holding that a decree of

.

restitution of conjugal rights obtained from a Civil Court did not

necessarily put in end to the order of the maintenance previously

passed under Section 125 Cr.P.C. It was further held that if the

Court finds that the proceedings for restitution of conjugal rights

are not brought with a view to take the wife back but to evade

the payment of maintenance, in that case the Magistrate or the

Court may refuse to act upon the decree or order of the Civil

Court.

6. It was also observed that in this case there are

reasons to believe that decree of restitution of conjugal rights

was not obtained by the respondent in a bonafide manner and

out of a genuine need to have the company of his wife restored

to him but his main purpose was to get the maintenance order

cancelled and it was never his intention to restore the company

of his wife that is why he never made any sincere efforts to bring

his wife back to his matrimonial house.

7. Placing heavy reliance upon the judgment of Hon’ble

Bombay High Court in Paremeshwaribai Nagesh Ganpaya vs.

Raghavendra Chidanand Kaikini AIR 1919 Bombay141 and

the judgment of Hon’ble Calcutta High Court in Tarak Nath

Dhar vs. Sneharani Dhar AIR (36)1949 Calcutta 87, wherein

30/12/2017 22:58:42 :::HCHP
4

it was held that a decision in a suit against the wife for restitution

of conjugal rights was equivalent to a decision by a competent

.

Civil Court that the wife had no sufficient reason for refusing to

live with her husband and, therefore, the order of maintenance

obtained by her had to yield to the order of restitution of

conjugal rights obtained by the husband, it was held that the

subsequent decree for restitution of conjugal rights is a binding

decision to the effect that the wife had no sufficient ground to

refuse to live with the husband, therefore, the previous order or

maintenance must be cancelled.

8. However, I find that the proposition as canvassed by

the learned counsel for the petitioner, in fact, does not rise for

consideration in the instant petition. Reason being that while

deciding FAO No. 343 of 2006 (supra), this Court vide its order

dated 19.04.2012 has clearly observed in the ultimate para of

the judgment that “the decision of this appeal does not

determine the merits of the case of the parties in proceedings

under Section 125 Cr.P.C. where they left to take their individual

remedy.”

9. Thus, once this court has clearly held that the

outcome of the proceedings in case relating to restitution of

conjugal rights shall have no effect on the merits of the case of

the parties in proceedings under Section 125 Cr.P.C., therefore, it

30/12/2017 22:58:42 :::HCHP
5

is more than obvious that the question as vehemently canvassed

by the learned counsel for the petitioner, does not at all arise for

.

consideration.

10. Now, adverting to the quantum of the maintenance

amount, the learned Court below has enhanced the maintenance

to Rs.3000/- per month, which in the current scenario of inflation

and high cost of living cannot be said to be termed to be

exorbitant, as the learned Sessions Judge has come to a

categoric finding that the petitioner, who now happens to be an

ex-serviceman but was serving in Army at the relevant time had

a cumulative income of not less than Rs.20,000/- per month.

11. Noticeably, the income so arrived at by the learned

Sessions Judge has not even been assailed before this Court.

12. In view of the aforesaid discussion, I find no merit in

this petition and the same is accordingly dismissed.

December 27, 2017 (Tarlok Singh Chauhan)
(Sanjeev) Judge

30/12/2017 22:58:42 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2018 SC and HC Judgments Online at MyNation