Arjunsingh @ Arjunlal S/o Harlal Jat vs State of M.P.

This application under Section 482 Cr.P.C. is directed against the order passed by learned Additional Sessions Judge, Badnagar District Ujjain dated 14/10/2016 in Criminal Revision No.26/2016, whereby, set-aside the order passed by learned Judicial Magistrate First Class, Badnagar in Miscellaneous Judicial Case No.17/2014 dated 15/12/2015 and granted maintenance allowance of Rs.3,000/- per month to the respondent.

The relevant facts for disposal of this application are that the respondent was married to the present applicant about 30 to 32 years back. She lived with the present applicant for about 8 to 10 years after her marriage and her daughter Kantabai was borne to her. About one month and one week after birth of the child, the present applicant went to the house of the parents of the respondent and brought the daughter back but within next two days he left back the child with the respondent and thereafter, the respondent was living with her parents. In the year 1990, he married another woman Sushilabai by Natra marriage. The respondent filed an application before learned Magistrate under Section 125 of Cr.P.C. stating therein that she was unable to maintain herself. The present applicant was having 30 Bigha irrigated land and he was earning income of Rs.5,00,000/- per year. He owns house in Badnagar, by which, he earns Rs.24,000/- per month. The respondent was not maintaining good health and therefore, she needed money to maintain herself. She issued a notice to the applicant on 20/11/2012 but he did not made any provision for her. She prayed for grant of Rs.15,000/- per month by way of maintenance.

Learned Magistrate after recording evidence of both the parties, dismissed the application on the ground that the respondent was living separately from the present applicant without any just and proper cause and therefore, she was not entitled for any maintenance. It was also opined by learned Magistrate that though allegedly a divorce took place between the applicant and respondent by a written deed, however, such a divorce could not be legally accepted. Still, the Magistrate opined that she was living separately without any reasonable cause and therefore, she was not entitled.

A revision was filed before the learned Additional Sessions Judge, and then Revisional Court found that ''Deed of Divorce'' Ex.D/1 has no legal force and unless a divorce is granted by a competent Court, it could not be said that the respondent was legally divorced. It was further opined by learned Additional Sessions Judge that even if it was assumed that she was divorced, a divorced wife is still entitled to receive maintenance from her husband till she re-marriage. In opinion of the learned Additional Sessions Judge, since the present applicant married another woman, that was a reasonable cause for the respondent''s refusal to live with the present applicant. The Court also relied upon law in the case of Makarchand vs. Leelabai and others [Criminal Revision No.4/2002], where this Court held that there was no period prescribed for filing of an application under Section 125 of Cr.P.C. and in the background of these inference, learned Additional Sessions Judge allowed the revision and set-aside the order passed by the Magistrate and awarded the maintenance allowance of Rs.3,000/- per month to the respondent.

Being aggrieved by order passed in revision, this application is filed on the ground that the respondent has been living separately by mutual consent on the basis of Talaknama Ex.-D/2. The Revisional Court erred in not accepting the fact that she was living separately without any just cause. The present applicant also laid evidence of Handwriting Expert to confirm the writing of Ex.-D/2 was that of the respondent and under these situations, it is said that learned Additional Sessions Judge erred in not taking into consideration the provisions of Section 125 (4) of Cr.P.C. and without considering the fact that, where the wife is living separately with mutual consent, no maintenance can be granted, allowed the revision and granted the maintenance allowance.

Learned counsel appearing on behalf of the respondent supports the impugned order and prayed that the application be dismissed and the impugned order be confirmed.

I have gone through the order passed by learned Magistrate as well as Additional Sessions Judge. It is apparent that Additional Sessions Judge erred in not considering the fact that Ex.D/2 is duly proved by the evidence produced by both the sides, specially the evidence of AW/2 Yogita Singh, who is brother of the respondent and who admitted that there was an agreement between the applicant and the respondent and it was produced in writing and that was Ex.D/2. Even, if this document can not be accepted as ''Deed of Divorce'', still it is apparent that the respondent was living separately with consent.

So far as, the question of marriage is concerned, learned Magistrate took into consideration this fact in detail. The second marriage was performed after execution of Ex.D/2 and present applicant was living separately prior to his second marriage and therefore, it can not be said that second marriage was the reason for her living separately from her husband.

In this view of the matter, it is apparent that the learned Additional Sessions Judge erroneously placed reliance on the order passed by this Court in Criminal Revision No.4/2002 Makarchand vs Smt. Leelabai (supra). When a wife is living separately without any reason by mutual consent, the provisions of Section 125 (4) of Cr.P.C. come into play and the wife is not entitled for any maintenance. This application under Section 482 Cr.P.C. deserves to be allowed and is accordingly allowed. The order passed by learned Additional Session Judge in Criminal Revision No.26/2016 dated 14/10/2016 is hereby set-aside and the order passed by learned Magistrate in MJC No.17/2014 dated 15/12/2015 is confirmed.

Records of the Lower Courts be transmitted back to the Court immediately without delay.

Certified copy as per rules.