Chinto @ Harbans Kaur vs Mohinder Singh

P.K. Jain, J.—This petition filed under Sections 397/401 of the Code of Criminal Procedure (hereinafter referred to as ''the Code''), is directed against the order dated 23.7.1986 passed by the Additional Sessions Judge, Sangrur, whereby the order dated 6.12.1985 passed by the Judicial Magistrate, Sunam, granting maintenance at the rate of Rs. 125/- per month to the petitioner, u/s 125 of the Code, has been set aside and the application filed by the petitioner dismissed.

The facts necessary for the disposal of this petition are that the petitioner was married to the respondent in the year 1979. They lived together and cohabited as such for a period of about 3 years. There is no issue out of this wedlock.

On 11.8.1984, the petitioner filed an application u/s 125 of the Code claiming maintenance from the respondent on the grounds that the respondent and his parents treated her with cruelty, and harassed and pressurised her to bring more dowry from her parents but the demands could not be met, and that ultimately, after giving beatings she was turned out of the matrimonial home. This application was resisted by the respondent on the ground that the petitioner had wilfully deserted him without his consent and without any reasonable cause, and that the application was filed as a counter blast to a petition filed by him u/s 13 of the Hindu Marriage Act for the dissolution of marriage by a decree of divorce on the grounds of cruelty and desertion. After recording evidence, the Judicial Magistrate, Sunam accepted the application vide his order dated 6.12.1985 and granted maintenance at the rate of Rs. 125/- per month to the petitioner with effect from the date of her application subject to certain adjustment of the amounts: received/to be received in the proceedings under the Hindu Marriage Act.

The respondent, feeling aggrieved, filed a revision petition against the order of the judicial Magistrate before the Sessions Court, Sangrur. In the meanwhile a decree of divorce was granted by the Civil Court on 15.3.1986 on the ground of desertion in favour of the respondent and against the petitioner. Placing reliance on the findings given by the Civil Court while granting a decree of divorce, the Additional Sessions Judge, by the impugned order accepted the revision petition filed by the respondent set aside the order dated 6.12.1985 passed by the Judicial Magistrate, Sunam and dismissed the application filed by the petitioner u/s 125 of the Code. Feeling aggrieved, Mst. Chinto alias Harbans Kaur, the petitioner has approached this Court under Sections 397/401 of the Code.

It is important to note that the petitioner (herein) filed F.A.O. No. 60-M/ 1986 against the decree of divorce passed on 15.3.1986. This appeal was accepted and the petition seeking dissolution of marriage by decree of divorce on the ground of cruelty and desertion filed by the respondent (herein) was dismissed. Dissatisfied with the judgment in appeal, the respondent filed L.P.A. No. 211 of 1987 in this Court which was also dismissed on 4.3.1991. The judgment in L.P.A. No. 211 of 1987 Mohinder Singh v. Harbans Kaur, is reported as 1991 (1) HLR 535 : 2 (1991) DMC 411.

This revision was ordered to be listed and heard alongwith said F.A.O. No. 60-M of 1986 but the same could not be listed and disposed of with the said appeal. Thereafter it was ordered that this revision be listed for hearing after the disposal of L.P.A. No. 211 of 1987. This is how that this revision has been listed before this Bench.

I have heard Mr. R.K. Battas, Advocate, the learned Counsel for the petitioner. None appeared on behalf of the respondent-husband. I need not go into the detailed evidence produced by the parties before the Judicial Magistrate in the proceedings u/s 125 of the Code. The findings given in L.P.A. No. 211 of 1987 reads as under :

"From the circumstances, referred to above, it is quite evident that the wife had reasonable cause to live separately from her husband and she had not wilfully withdrawn from his society, with animus deserendi. The husband has thus failed to prove affirmatively both the grounds of desertion and cruelty pleaded by him for getting divorce from his wife, in this case.

In view of this categorical finding given by this Court in the said appeal, the impugned order passed by the Additional Sessions Judge, is not sustainable. The necessary result is that the petitioner was treated with cruelty by the respondent and his parents and she had reasonable cause to live separately. Apparently, the respondent neglected to maintain her. Therefore, the Judicial Magistrate was justified in accepting the application of the petitioner and granting her maintenance at the rate of Rs. 125/- per month u/s 125 of the Code.

As a result of the above discussion, the present petition is allowed. The order dated 23.7.1986 passed by the Additional Sessions Judge, Sangrur, is hereby set aside and the order dated 6.12.1985 passed by the Judicial Magistrate, Sunam granting maintenance to the petitioner u/s 125 of the Code, is hereby restored.