Balvinder Singh vs Pritam Kaur

S.S.Dewan, J.

This Criminal revision arises out of the proceedings for maintenance under S. 125 of the Criminal Procedure Code, 1973, (for short the Code) initiated by the respondent Pritam Kaur. The SubDivisional Judicial Magistrate, Malerkotla, went into the matter and rejected her application for maintenance. Feeling aggrieved, she went up in revision and the same was allowed by the learned Additional Sessions Judge, Sangrur, on April 27, 1983, granting Rs.150/ P.M. to her as maintenance allowance. Feeling dissatisfied, Balwinder Singh has now challenged that order in revision.

Smt. Pritam Kaur was married to Balwinder Singh and she remained with him for 4/5 years as his wife. It is alleged that sometime in the month of October,1977, Balwinder Singh gave beating to her and turned her out of his house. The respondent succeeded in obtaining a decree under S. 9 of the Hindu Marriage Act against the petitioner but that decree remained uncomplied as he did not care to keep her and thus he refused and neglected to maintain her since October, 1977. It is said that during the pendency of the proceedings, the petitioner obtained decree of divorce dated October 30, 1981 against the respondent from the Court of the learned District Judge, Patiala. The petitioner hotly contested the allegation of the respondent. The trial Magistrate feeling dissatisfied with the arguments advanced on behalf of the respondent, dismissed her application.

The question for determination before me is whether the divorced wife is entitled to receive any maintenance from her husband. S. 125(4) of the Code reads as follows :

"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."

SubSection (4) of S. 125 of the Code provides for cases where a wife is to be denied maintenance on certain grounds notwithstanding the provisions of S. 125 (1) of the Code. A divorced spouses can not be characterised as a wife living separately by mutual consent. She is a person, who lives separately from her husband by virtue of a change in status consequent upon the dissolution of marriage. Explanation (b) of S. 125 of the Code reads :

"Wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried."

The respondent having been divorced by the petitioner. She is entitled to enforce her right for maintenance which is now conferred upon her under the new Code. This is what she has done and in my view for good reason. The finding of the learned Additional Sessions Judge that the respondent is entitled to be maintained by her husband is upheld.

During the course of arguments, the learned counsel for the petitioner contended that the petitioner is not in flourishing circumstance as he is depending on the income of his father, who owns some land and that the amount of Rs.150/ P.M. granted to the respondent as maintenance allowance is too excessive. I must first of all point out that it is the settled practice of this court not to interfere with the quantum of maintenance granted by the Court''s below unless it is so manifestly perverse that it requires interference. Besides, the possession of property or other income is not at all the criterion for awarding maintenance under S. 125 of the Code. It is independent of possession of property. So long as a man, if able bodied, can work and earn his livelihood, it is his duty to support his wife. Now according to the learned Additional Sessions Judge who has dealt with this aspect has taken pains to go through the relevant evidence and then awarded Rs. 150/ to the respondent as maintenance allowance. In this background, I am afraid it is hardly open to the counsel for the petitioner to reopen and reagitate this aspect.

The net result is that there is no ground to interfere with the order passed by the learned additional Sessions Judge and this revision is dismissed.

Revision dismissed.