Balbir Singh vs Dhanpati

Pritpal Singh, J.

Balbir Singh has filed this petition under section 482 of the Code of Criminal Procedure (hereinafter called ''the Code'') for quashing the order of the Chief Judicial Magistrate Sonepat, dated 11th January, 1983 by which his application under section 127 of the Code was dismissed as also the order of the Additional Sessions Judge, Sonepat, dated January 17, 1984, by which, his revision against the order of the Chief Judicial Magistrate was dismissed.

The petitioner was married to the respondent Smt Dhanpati in 1962 The latter applied under section 125 of the Code claiming maintenance allowance from the petitioner which was accepted, and the Court ordered the petitioner to pay Rs. 40/ per month as maintenance to her. This order was passed on December 9, 1974. Subsequently, the petitioner obtained a decree for judicial separation against his wife on April 3, 1979 on the ground of desertion. Later on a decree for divorce was passed in his favour against Dhanpati on November 25, 1980 The petitioner filed an application under section 127 of the Code on December 14, 1981 for cancellation of the order of maintenance dated December 9. 1974, on the plea that his wife Dhanpati had deserted him. This application was dismissed by the Chief Judicial Magistrate, Sonepat, vide the impugned order dated January 11, 1983 The petitioner''s revision against this order was dismissed by the Additional Sessions Judge, Sonepat on January 17, 1984.

In this petition under section 482 of the, Code it is contended on, behalf or the petitioner that he had obtained a decree for judicial separation against Dhanpati on April 3, 1979, on the ground of desertion and as such under section 127 (2) of the Code the order of maintenance obtained by Dhanpati on December 9. 1974 deserved cancellation. This contention has no merit Section 127 (2) of the Code is as follows :

127 (2) "Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or as the case may be, vary the same accordingly".

It is contended on behalf of the petitioner that in consequence of the aforesaid decree for judicial separation on the ground of desertion the maintenance order was liable to be cancelled in view of the provisions of Section 125 (5) of the Code, which is in the following terms

125 (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 contest, the Magistrate shall cancel the order."

A combined reading of sections 125 (5) and 127 (2) of the Code shows that after the order of maintenance is passed in favour of the wife if it appears to the Magistrate who passed the order that in consequence of any decision of the competent civil Court it is found that the wife had deserted the husband then the maintenance order would be liable to he cancelled. In the instant case the petitioner had obtained a decree for judicial separation against the respondent on April 3, 1979 on the ground of desertion and at that time in consequence of this decree the petitioner could have legitimately applied for the cancellation of the maintenance order under section 127(2), of the Code. However, the situation changed radically when the petitioner subsequently obtained a decree, of divorce against the respondent on November 25, 1980. After the parties were divorced the respondent was not obliged to live with the petitioner and so it could not be said that after the divorce she had refused to live with the petitioner without sufficient reason. There was, therefore, no occasion for the cancellation of the order or maintenance under section 127 (2) of the Code after the passing of the divorce decree. Since the petitioner had filed the application under section 127 of the Code on December 14, 1981. that is after the passing of the divorce decree, the provisions of subsection (2) of this section became inapplicable and the matter had to be decided in the light of subsection (3) of Section 127 of the Code, which is as follows:

127 (3) "Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that :

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order the whole of the sum which. under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order:

(i) in the case where such sum was paid before such order, from. the date on which such order was made,

(ii) in any other case. from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof".

it is therefore clear that after the divorce the order of maintenance obtained by the respondent under section 125 of the Code could be cancelled only if she had remarried or having obtained divorce had voluntarily surrendered her rights to maintenance None of these conditions is satisfied in the instant case.

A judgment of a Single Bench of this Court in Rajinder Parkash v. Smt. Roshni Devi, A.I.R. 1981 Punjab and Haryana 212, is also relevant to the point under consideration. In that case the husband was granted divorce on the ground of desertion under the Hindu Marriage Act. It was held that it under section 125 of the Code wife includes a woman who has been divorced and such woman is entitled to an order of maintenance provided all other requirements are fulfilled. It was observed that from this as well as from the scheme of the Hindu Marriage Act, it cannot be inferred that because the divorce was granted on account of desertion on the part of the wife, she has disentitled herself to the maintenance under section 25 of the Hindu Marriage Act.

The learned petitioner''s counsel cited Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others. A.I.R. 1978 Supreme Court 1307 and Baldev Raj v. Pushpa Rani, A.I.R. 1970 Punjab & Haryana 515, but these judgments are not relevant to the facts of the present case.

Hence I find no infirmity in the impugned orders of the Courts below and consequently dismiss this petition.