Harjit Singh vs Jasjit Kaur

S.S. Grewal, J.—This petition u/s 482 of the Code of Criminal Procedure, read with Article 227 of the Constitution of India, relates to quashment of the order passed by the Additional Chief Judicial Magistrate, Patiala, dated 14th, January, 1988, whereby, interim maintenance at the rate of Rs.200/- per month was awarded to the respondent wife. Quashment has also been sought of the order of the Additional Sessions Judge, Patiala, dated 5th July, 1988, whereby, aforesaid order of the Additional Chief Judicial Magistrate, concerning award of interim maintenance was upheld.

In brief, the facts relevant for the disposal of this case, are, that the District Judge, Patiala, vide his order dated 1st April, 1987 granted decree of divorce for dissolution of the marriage of the parties on the basis of the mutual consent. At the time of the passing of the aforesaid decree of divorce, respondent-wife (in the present case) gave up her claim against her husband, concerning her right to maintenance, as well as, in respect of return of dowry articles.

After about two months of the passing of the decree of divorce on the basis of mutual consent, the respondent-wife initiated proceedings u/s 125, Code of Criminal Procedure, 1973 (hereinafter referred to as ''the code''), against her husband, in those proceedings, on her request the Additional Chief Judicial Magistrate, Patiala, vide his order dated 14th January, 1988 directed the petitioner husband (in the present case) to pay Rs.200/- per month as interim maintenance allowance, to the respondent wife. The Crl. Revision filed against the impugned order passed by the Additional Chief Judicial Magistrate was dismissed by the Additional Sessions Judge, Patiala, vide his order dated 5th July, 1988.

Aggrieved against the orders of the Courts below, concerning grant of interim maintenance to the wife, the husband has filed the present petition.

Counsel for the parties were heard.

It was mainly submitted on behalf of the husband that his divorced-wife had already relinquished her right of maintenance, and, as such, she had no legal right to claim any maintenance from the husband.

This argument is hardly tenable as far as award of interim maintenance to the divorced wife is concerned. In the impugned orders there is no specific mention that the wife had given up her right to future maintenance. At any rate, this matter can be decided on merits after the parties are given adequate opportunity to lead their evidence. The impugned order passed by the Additional Chief Judicial Magistrate relates to grant of interim maintenance; the same in an interlocutory order, and, no revision against the same is maintainable.

I find support in my view by the authority in case Pawan Kumar v. Smt. Chanchal Kumari, 19S7 (2) RCR 454, and Tek Chand v. Naraini and others, 1986 (2) RCR 287. Dealing with this aspect of the case it was held by their Lordships of the Supreme Court in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, that no husband can claim u/s 127 (3) (b) absolution from his obligation u/s 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law, whose quantum is more or less sufficient to do duty for maintenance allowance.

On behalf of the petitioner husband reliance was placed on the authority in case Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, wherein it was held as under :-

"A divorced wife''s claim for maintenance qua wife under the definition contained in the explanation (b) to Section 125 of the Code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance."

It is true, in view of the authority in Capt. Ramesh Chander Kaushal''s (supra), the right of divorced wife to claim maintenance under the definition contained in the Explanation (b) to Section 125 of the Code continues, unless the parties, make adjustment, and, come to terms regarding the quantum or the right to maintenance. Till such adjustment, or, terms regarding the quantum, or the right to maintenance, as pleaded on behalf of the petitioner husband, is proved, the right of the divorced wife to claim maintenance would continue. Thus, the interim maintenance awarded in the instant case shall be subject to the final decision of the Court in respect of such adjustment, or terms regarding the quantum, or, the right to maintenance.

The question whether the wife would not be entitled to claim maintenance from the husband, as opposed to public policy, and cannot be enforced in a Court of law, in view of Section 23 of the Contract Act, can be more appropriately decided at the final state, when, all the terms and conditions in respect of such an agreement, are proved on the record, and, not at the stage when the dispute between the parties only relates to grant of interim maintenance.

The other contention raised on behalf of the petitioner-husband relates to defences open to the husband under sub-section (4) of Section 125 of the Code, against the divorced-wife.

A Division Bench of this Court in Criminal Revision No.747 of 1986 Chander Kumar Sharma v. Smt. Shamiriti Sharma, decided on 5th December, 1988, held that only the first defence against the divorced wife that she is living in adultery, would be open to the husband, under sub-section (4) of Section 125 of the Code and, not the other two defences. This ground if taken can be looked into by the trial court at the time when question concerning award of maintenance to the divorced-wife is finally decided/

For the foregoing reasons. 1 do not find any merit in this petition, and, the same is hereby dismissed.

The parties, through their counsel, are directed to appear before the Additional Chief Judicial Magistrate, Patiala, on 14th June, 1989, and, the said Court would finally dispose of this case expeditiously.