J. Sampathkumar vs Subashini

David Annoussamy, J.—This is a revision against an order granting maintenance under S. 125, Cr.P.C.

The facts of the case are summarily as follows : The parties got married on 21st January 1977. They lived together for some time and then the

wife went to her mother''s house. The husband instituted a proceeding in the year 1980 or restitution of conjugal rights. The wife, the respondent

therein, filed a petition under S. 23A of the Hindu Marriage Act praying for divorce on the ground of cruelty and desertion. It appears that the

husband did not very much resist that prayer. Accordingly, divorce was pronounced on 3rd March, 1981 by the City Civil Court, Madras, in O.P.

No. 582 of 1977. This petition was filed by the wife soon after in August, 1981 under S. 125 Cr.P.C. for maintenance. The Magistrate passed an

order on 28th December 1981 directing the husband to pay a maintenance of Rs. 100/- to the wife. It is against that order that the present revision

petition is filed.

For getting an order of maintenance under S. 125, Cr.P.C. one should show that the person bound to maintain, neglected or refused to

maintain. In the present case, the matrimonial proceeding between the parties ended only on 3rd March, 1981. It was not shown that the wife

asked for any maintenance pendente lite during the course of that proceeding. Even prior to that the parties have been living separately. It cannot

therefore be said that in this case there was any neglect or refusal to maintain. Therefore, this is not a fit case for an order under S. 125, Cr.P.C.

What the respondent should have done is to ask the matrimonial Court itself to grant maintenance along with the decree of divorce if she was

interested in maintenance. But, even subsequent to the order, if she is of opinion that maintenance is necessary, she can still approach the

matrimonial Court by way of interlocutory application in O.P. No. 582 of 1977 under S. 25 of the Hindu Marriage Act, 1955 for getting

maintenance.

In the result, the revision petition is allowed, the order granting maintenance is set aside. The wife is not liable to pay back any maintenance

already received.

Revision allowed.