Chander Kumar Sharma vs Samriti Sharma

V.S. Aggarwal, J.

Respondent Smt. Samriti Sharma was married to petitioner Chander Kumar Sharma on 9.9.1973 at Nabha according to Hindu rites. After the marriage the couple lived together at Chandigarh upto 16.12.1975. Respondent filed a petition under Section 125 Cr.P.C. for maintenance. She complained that after the marriage the petitioner has been making demand for more dowry and a scooter. The respondent refused to oblige. The petitioner had beaten her and she was turned out of the matrimonial house. The result was that she took shelter in her parents'' house. Asserting that she has no other source of income, maintenance at Rs. 500/ P.M. was claimed.

The petitioner contested the petition. Earlier the petition was dismissed. But when the matter came to this Court, the revision petition was accepted and the case was remanded for a fresh decision after allowing the parties to amend their pleadings. The petitioner even had filed an application under Section 13 of the Hindu Marriage Act for divorce. That petition had since been allowed and admittedly a decree for divorce had been passed. In this process, the status of the parties had undergone a change.

The respondent amended her petition and now contended that after the decree for divorce, she has not remarried. She has no source of income. The petitioner earns Rs. 1500/ P.M. and accordingly it was reiterated that she be granted maintenance at the rate of Rs. 500/ P.M.

The amended petition was contested. There was no controversy about there being a marriage between the two and that they were blessed with a male issue. Petitioner''s case was that respondent has been residing separately and in any case when decree for divorce had been granted, she is not entitled to maintenance because she had deserted him. It was the case of the petitioner that respondent works as a Teacher and she is carrying on tuition work and she is earning enough and thus is not entitled to the maintenance.

The learned Judicial Magistrate, Nabha after recording the evidence held that the petitioner having obtained the decree for divorce is still liable to maintain his divorced wife. The respondent has not remarried and in this connection reliance was placed on subsection (1) of Section 125 Cr.P.C. which prescribes that wife includes a woman who has been divorced. It was further held that respondent has no source of income and the petitioner is liable to maintain her. Thereafter the learned Judicial Magistrate determined the quantum of maintenance and awarded Rs. 300/ P.M. as maintenance to the respondent.

Aggrieved by the same, the revision petition in question had been filed.

During the pendency of the revision petition, keeping in view the different views expressed, two questions were referred for opinion to the larger Bench namely :

"(1) Whether the findings recorded by a Civil Court in exercise of its matrimonial jurisdiction, except the one dealing with the legal character or the marital status of the parties to the same, are relevant and admissible for the adjudication of the claim of the wife u/s 125, Cr.P.C. ?

(2) Whether the defences specified in subsection (4) of Section 125, Cr.P.C. are available to the husband in a petition filed under this section by the divorcee wife ?"

The Division Bench answered the first question as :

"In this view of the matter, final judgment of a competent Civil Court in exercise of matrimonial jurisdiction would be binding even in respect of matters other than dealing with legal character, and, marital in `adultery'', it has been rightly conceded before us that the husband can take up the defence that his wife is living in adultery. In such a case, the divorced wife, who is guilty of living in adultery, obviously cannot claim any maintenance from her husband, and such a defence would be open to the husband in maintenance proceedings."

With respect to the second question, the answer given was :

"Thus the first defence against the divorced wife that she is living in adultery, would be open to the husband, and not the other two defences available, under subsection (4) of Section 125 of the Code of Criminal Procedure."

Scope of the present revision petition at the time of arguments was, therefore, confined to certain basic questions. There is no controversy that the findings of the Division Bench interse between the parties would bind them. It is not the case of the petitioner that respondent is living in adultery. Since there has been a decree for divorce granted between the parties, thus, as per the findings of the Division Bench, other defences contemplated under subsection (4) of Section 125 Cr.P.C. are not open to the petitioner. Consequently, the order of the learned trial court requires no interference or modification.

No other argument was advanced.

As an offshoot of these reasons, the present petition must fail and is dismissed.