Amar Singh vs Bhagwatibai

N.K. Jain, J.—This revision is directed against the Order dated 30.4.1992 passed by II Additional Sessions Judge, Khargaon in Cr. Revision No. 54/91 reversing the Order dated 5.12.1990 of the Chief Judicial Magistrate in Misc. Criminal Case No. 216/88.

The respondent is the married wife of the applicant. It appears that for about 15 years preceding the filing of the application u/s 125, Cr.P.C., the respondent-wife has been living with her father separately from her husband, the applicant. In the meantime, the applicant has contracted second marriage.

The respondent made application before the Magistrate u/s 125, Cr.P.C. claiming maintenance on the ground that the applicant-husband has without sufficient cause neglected to maintain her and that she is unable to maintain herself. The application was resisted by the applicant on the ground that the respondent on her own and without any sufficient cause had left his house and she was, therefore, not entitled to claim maintenance so belatedly. The learned Magistrate by his order dated 5.12.1990 dismissed the application. However, in revision, the learned Additional Sessions Judge by order impugned set aside the order of the Magistrate and directed payment of maintenance @ Rs. 300/- per month.

I have heard Mr. P.K. Saxena, learned Sr. Counsel appearing with Mr. P.K. Jain for the applicant. None has, however, appeared for the respondent, though served.

The learned Magistrate dismissed the application for maintenance mainly on the ground of delay and latches inasmuch as the applicant did not ask for the maintenance for nearly 15 years after leaving the petitioner''s house. The Magistrate has further held that she having left her husband''s house on her own and without any sufficient cause, she cannot now make any grievance even on the ground of her husband having contracted second marriage. The reliance was placed on Kamlabai v. Gajanand (1984 MPWN 170). The learned Additional Sessions Judge, on the other hand, held that the delay is properly explained, that no limitation is prescribed for making application u/s 125, Cr.P.C. and that the applicant-wife, in the instant case, was justified to refuse to live with her husband and claim maintenance. The reliance was placed on another decision of this Court in Shobhabai v. Radheshyam (1991 2 MPWN 171).

Although no definite date or year of the desertion or of the re-marriage could be shown by any party in evidence, one thing is luculent that it was not a case where husband contracted second marriage after having failed to persuade his wife to return to him. On the contrary, Sobhag Singh (PW 2), the brother of the respondent-wife has clearly stated that the woman with whom the petitioner-husband has contracted second marriage, started living with the petitioner even before the respondent-wife left his house. This statement of Sobhag Singh remained almost unchallenged and uncontroverted by the petitioner who did not try to explain as to why and when he contracted second marriage. The respondent, under the circumstances, was justified in parting with the company of her husband who had also labelled false charge of theft against her. It was thus clearly a case of adultery/bigamy coupled with cruelty which justified the respondent-wife to refuse to live with the husband and claim maintenance. The ratio in Kamlabai''s case (supra) was not available to the petitioner-husband in the instant case.

As regards delay in filing the application, it is well settled that no limitation is prescribed for making an application u/s 125, Cr.P.C. (see: Shobhabai''s case (supra). In the instant case, the delay stands explained properly. The respondent-wife after leaving her husband''s house started living with and was maintained by her father. It is only after the death of father that she approached the Court for maintenance. Her application could not be, therefore, dismissed merely on the ground of delay.

From the foregoing discussion it will be thus seen that the learned Magistrate was manifestly wrong in dismissing the respondent''s application and the learned Additional Sessions Judge rightly interfered in revision awarding maintenance. I, therefore, decline the interference and dismiss this revision.