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HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. – 2023:AHC:241971
Reserved On: 22.08.2023
Delivered On: 22.12.2023
In Chamber
Case :- CRIMINAL REVISION No. – 4249 of 2019
Revisionist :- Smt. Shilpa Sharma And Another
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Rishu Mishra,Pankaj Dubey
Counsel for Opposite Party :- G.A.,Kamlesh Kumar Tiwari
Hon’ble Ram Manohar Narayan Mishra,J.
1.Heard the submission of learned counsel for the revisionists, learned counsel for the respondent no.2 and learned A.G.A for the State and perused the record.
2.By means of the instant criminal revision has been filed by the revisionist who is applicant in Case No.26 of 2018 under Section 125 Cr.P.C. Police Station- Babina District- Jhansi.
3.Applicants have assailed the judgment and order dated 12.07.2019 on the prayer for maintenance for awarding maintenance under Section 125 Cr.P.C. against opposite party-Manish Sharma who has declined to pay maintenance to applicant no.1 and has provided maintenance to the applicant no.2 Ans Sharma the minor son of the applicant no.1 and opposite party at the rate of Rs.5,000/- per month by the order dated 12.07.2019. The factual matrix of the case in brief are that the applicants Smt. Shilpa Sharma and her minor son instituted a case under Section 125 Cr.P.C. before Principal Judge, Family Court which is registered as maintenance Case No.26 of 2018 under Section 125 Cr.P.C. It is stated that she was married with opposite party- Manish Sharma (respondent no.2) on 11.02.2012 with Hindu rites and rituals. The attitude of opposite party was rude from the very beginning and a male child was born out of the wedlock. The opposite party has neglected to maintain her and practised matrimonial cruelty against her. He used to exert pressure on her to desert all relationship with her parents. The opposite party and his family members were greedy of dowry, they grabbed the ornaments of the applicant no.1. The difficulties of the applicant multiplied after birth of the child as the opposite party did not pay any money to the applicant to meet out expenses of herself and her minor son. He used to engage in maar-peet with her. Opposite party even did not allow her to speak to her parents as well as she was not permitted to meet her parents. Due to high-handedness of opposite party and his family members the survival of the applicants became difficult at the place of opposite party. Ultimately on festive occasion she left her matrimonial home in the year 2016 and shifted to her parental home along with her son. The opposite party never came to take her or her minor son back to his place. She was suffering from different financial constraints. In the meanwhile, the opposite party filed a divorce petition registered as matrimonial Suit No.87 of 2018, Manish Sharma Vs. Smt. Shilpa Sharma under Section 13 of Hindu Marriage Act before Additional District and Sessions Judge (FTC), prior to filing of present maintenance petition by the revisionist. Both the suits filed by the husband against revisionist for dissolution of marriage under Section 13 of the Hindu Marriage Act and other by present revisionist under Section 125 Cr.P.C., were consolidated by the orders of the court and decided by common judgment dated 12.07.2019 whereby the divorce suit was decreed in favour of the husband- opposite party no.2 and decree of divorce was granted, but in maintenance petition filed by the applicants the maintenance was declined to applicant no.1 and only Rs.5,000/- per month maintenance was granted to applicant no.2 the son of applicant no.1 who are revisionist before this Court.
4.Learned counsel for the revisionist submitted that learned court below has committed factual and legal error while declining maintenance to revisionist no.1. In said maintenance suit the judgment and order passed by the learned court below is against, the facts and evidence on record and the same is based on presumption and mis-interpretation of the pleadings as well as the oral documentary evidence on record. The learned court below has not granted any maintenance to revisionist no.1. The learned court below has not made any effort to comply with the provisions of Section 13 of sub-Section 2 of Hindu Marriage Act to bring about re-conciliation between the parties and the court below has passed decree of divorce against revisionist no.1. The findings recorded by the learned court below are contrary to the material evidence on record. Learned court below has failed to record any reason within the ambit of law to discard the pleading and evidence of the applicant and not considering the evidence of applicant as such the judgment is vitiated in law.
5.The revisionist no.1 has filed first appeal under Section 19 of the Family court read with under Section 28 of Hindu Marriage Act before this Court which is registered as first appeal No.620 of 2019, Smt. Shilpa Sharma Vs. Manish Sharma, and the same has been admitted by this court for hearing and notices were issued to opposite party no.2, therefore, it is expedient to award maintenance to revisionist no.1 and enhance the maintenance awarded to revisionist no.2
6.Per contra, learned counsel appearing for respondent no.2 submitted that the learned family judge has given finding in common judgment dated 12.07.2019 in connected cases Manish Sharma Vs. Smt. Shilpa Sharma under Section 13 of Hindu Marriage Act and Maintenance Case No.26 of 2018 Smt. Shilpa Sharma and another Vs. Manish Sharma under Section 125 Cr.P.C., that the allegations levelled by the revisionist no.1 against respondent no.2 were found false which amounts to practising of cruelty by the wife against the husband. She failed to prove the grounds of her separate living from her husband by any independent evidence. Keeping into consideration the judgment of Delhi High Court in Smt. Kamini Gupta Vs. Mukesh Kumar Gupta AIR (1995) Delhi 221 and Bhawna N.Shah Vs. Nitin Chiman Lal Shah (2012) 4 Civil Court cases 355 (Bombay) (DB). The wife of the opposite party appears to have practising mental cruelty against the husband. This fact has been brought during evidence that the parties are living separately for four years and within this period the petitioner came to take his wife back but her parents did not behave properly with him and wife of the opposite party also refused to go with him. The learned family judge has found that revisionist no.1 is guilty of committing matrimonial desertion against her husband. She deserted her husband without his consent and sufficient reason prior to two years of filing present divorce petition, on that basis decree of divorce was granted to respondent no.2.
7.Learned counsel further submitted that the learned court below has observed in impugned judgment while dealing with the consolidated maintenance case Smt. Shilpa Sharma and Another Vs. Manish Sharma under Section 125 Cr.P.C., has observed that the opposite party (Manish Sharma) has stated in his written statement that the applicant earns around Rs.40,000/- per month by her business of boutique and giving tuition. He has filed ITR of the applicant (Smt. Shilpa Sharma) for one year but failed to lead any documentary evidence regarding regular income of the applicant, wherein the applicant has denied the version of opposite party in regard to her source of income. She appeared as DW-2 during hearing and stated that she was unable to maintain herself. The learned court below has given the finding that the applicant no.1 Smt. Shilpa Sharma is not having any regular source of income. The learned court below has declined to award maintenance to applicant no.1 on the ground that she is living separately with her husband without proof of any sufficient reason. The opposite party (husband) is not found negligent in maintenance of wife but it is found that he has neglected to maintain his minor son- Ans Sharma who is applicant no.2 in maintenance case, and with this finding learned court below has awarded maintenance only to applicant no.2- the minor son of her spouse.
8.The instant revision has been filed with the finding of the order of learned court below in consolidated case No.26 of 2018 under Section 125 Cr.P.C. which specifically assailed and this Court to decide instant criminal revision filed against part of the consolidated judgment dated 12.07.2019. So far as it relates to maintenance Case No.26 of 2018 under Section 125 Cr.P.C. filed by the revisionist against the respondent no.2, as the decree of divorce awarded in favour of the husband- Manish Sharma is already assailed by the applicant no.1 Smt. Shilpa Sharma in matrimonial appeal under Section 19 of the Family Courts Act before this Court in separate proceeding.
9.Section 125 of Cr.P.C. reads as follows:-
125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.
(4) 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 are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
10.By the Hon’ble Supreme Court in the case of Rohtash Singh Vs. Ramendri Ors. (2000) 3 SCC 180, while interpreting sub-section(4) of 125 Cr.P.C. observed as under:-
11. The Supreme Court further went on to hold that once decree of divorce was passed on the ground of desertion by the wife, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act.
12. In view of the law as laid down by the Supreme Court in Rohtash Singh (Supra), in the present case as decree of divorce has been passed on the ground of desertion on 12.03.2015 and the said decree has been upheld upto the Supreme Court, the petitioner clearly is disentitled to maintenance for the period prior to the passing of the decree of divorce.
13. Further in terms of the law laid down in Rohtash Singh (Supra) by the Supreme Court as noticed above, she would be entitled to maintain an application for maintenance under Section 125 Cr. P.C. provided she satisfies the condition mentioned in section 125 (1)(a) Cr.P.C.”
11.In the present case, application for maintenance under Section 125 Cr.P.C. was filed by the revisionist after filing of the divorce petition by husband-opposite party during subsistence of marriage between the parties wherein she stated that she was compelled to live separately from her husband since the year 2016, as she was subjected to matrimonial cruelty and neglected by her husband. She was not given any money by her husband to maintain herself as well as her minor son, whereas the learned court below has given a finding that after appreciating the evidence on record that the wife left her matrimonial home without sufficient reason and thus, she was found to have deserted and on that ground a decree of divorce has been passed in common order passed by the court below in both the consolidated cases.
11.In Rohtash Singh Vs. Ramendri Ors. (2000) 3 SCC 180, the petitioner filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage on the ground of desertion. The respondent in her defence raised various pleas including mal-treatment and cruelty as also a demand by the petitioner for dowry. Hon’ble Supreme Court observed that under Section 125(4) Cr.P.C., the wife shall not be entitled to receive any allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, from her husband on three grounds:- (1) if she is living in adultery; (2) if without any sufficient reason, she refuses to live with her husband (3) if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matri-monial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure. Similarly on the second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband’s refusal to pay her the Maintenance Allowance. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be “wife” within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under :-
“Explanation. – For the purposes of this Chapter –
(a) ………………………………………………………….
(b) “wife” includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.”
12.On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court in Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl. L.J. 36. had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. The Hon’ble Apex Court had concluded that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act.
13.In the present case, the allegations and counter allegations are made by the parties against each other. The opposite party No.2 (wife) has levelled serious allegations of commission of matrimonial cruelty against the revisionist, who was her husband at the time of filing of application under Section 125 Cr.P.C. The revisionist has levelled specific allegations of desertion acted by wife against him. The family Court in matrimonial suti filed by the revisionist-husband found wife guilty of committing matrimonial offence of desertion and has granted decree of divorce in favour of the revisionist against opposite party no.2 vide judgement and order dated 12.02.2020, passed in said matrimonial case. Therefore, in the light of judgement of Hon’ble Apex Court in the case of Rohtash Singh Vs. Ramendri Ors. (supra), the opposite party will be entitled to obtain maintenance from her husband from the date of passing of decree under Section 13 of Hindu Marriage Act as the matrimonial relationship between the parties dis-continued since then. However, would not be entitled to obtain maintenance from date of filing of application to date of passing of said decree of divorce, accordingly.
14.In light of the aforementioned discussion, this Court is of the considered opinion that although the applicant no.1 is not entitled to seek maintenance from respondent no.2 for the period of subsistence of their marriage due to the finding of family court in the impugned judgment to the effect that she refused to live with her husband without any sufficient reason and thus, her claim was hit by Section 125 sub-Section 4 of Cr.P.C. As per finding of court below which is already under challenge in separate proceeding under Section 19 of the Family Courts Act before this Court against decree of divorce, however, the status of the parties as stands at present, she is entitled to claim maintenance from her husband (respondent no.2) from the date of filing of decree of divorce till she was re-married and learned court below has declined to award maintenance to her even after giving a finding that respondent no.2 has failed to prove the fact that he is having sufficient financial means to maintain herself.
15.In the light of the foregoing discussion, this Court is of the considered opinion that the revisionist no.1 is entitled to seek maintenance from her husband for post divorce period till she is re-married and the finding of the learned court below by which the maintenance claimed by the revisionist no.1 is declined into to cannot be sustained, as the same
is in teeth of ratio of judgment of Hon’ble Apex Court in Rohtash Singh Vs. Ramendri Ors.(supra).
16.The revision stands partly allowed, with observation that the learned court below will consider the grant of maintenance to the revisionist no.1., for period from the date of decree of divorce till she was re-married, after giving opportunity of hearing to both the sides in the light of judgment of Hon’ble Apex Court in Rajnesh Vs. Neha (2021) 2 SCC 324.
Order Date :- 22.12.2023
A Gautam