Jasbir Singh vs Amrit Kaur Walia

S.D. Bajaj, J.

Jasbir Singh Walia petitioner, married Smt. Amrit Kaur Walia respondent on 6th October, 1984. The two spouses last lived together at Agra upto 14th February, 1986. On this date the wife returned to her parental home at Phagwara and is living therein ever since thereafter. She filed miscellaneous Application No. 7M on 21st April, 1987 under Section 125 of the Criminal Procedure Code for maintenance. Adinterim maintenance was awarded to her therein which has duly been paid upto 30th May. 1988.

Additional Civil Judge at Agra on 30th May, 1988 granted to the petitioner against the respondent wife an exparte decree for restitution of conjugal rights in terms of Section 9 of the Hindu Marriage Act. Application filed by the wife for reversal of the exparte decree was dismissed by the same Court. Petitioner husband filed before the learned Judicial Magistrate Phagwara, an application for dismissal of the wife''s application for maintenance on the ground that she was not complying with the decree for restitution of conjugal rights passed against her by the Agracourt and she was, therefore, not entitled to claim and obtain the maintenance. Learned trial court made the following order therein :

"The respondent has already obtained exparte decree under Section 9 of Hindu Marriage Act. That has not been complied with. The petition for setting aside the said ex parte decree moved by the petitioner has also been dismissed. Adinterim maintenance allowance as ordered by this court has been paid up to the date of exparte decree for restitution of conjugal rights. The position being so, the present petition under Section 125 Cr.P.C. cannot be proceeded with, unless that ex parte decree for restitution of conjugal fights, subsists. So the present petition is dismissed for that reason. However, the petitioner is at liberty to get this petition restored as and when that exparte decree for restitution of conjugal rights is set aside or as the case may be. File be consigned."

In Cr. R No. 39 dated 8th June, 1989/38 dated l5th June, 1989 (registered after receipt on transfer) decided on 24th August, 1990 learned Additional Sessions Judge, Kapurthala, reversed the order passed by the learned trial court on 2nd May, 1989 (reproduced above) remanded the case and directed the learned trial court to decide the maintenance application on merits; after allowing both the parties to adduce evidence before it.

Second Criminal Revision No. 782 of 1990 has been filed by the husband in this Court, for vacation of the order passed by the learned Additional Sessions Judge on 12th August, 1990 and restoration of the order passed by the learned trial court on 2nd May, 1989.

I have heard Shri Jasbir Singh, Advocate, for the petitioner, Shri Suresh Amba, Advocate, for the respondent and have carefully perused the material on record.

In Piara Singh v. Satwant Kaur and another, 1988(2) R.C.R.(Criminal) 389 : 1989(1) All India Hindu Law Reporter 15 this Court observed :

"The contention of Mr. Suresh Amba, Advocate, for the petitioner, is that the Addl. Sessions Judge completely ignored the fact that a decree for restitution conjugal rights had been passed by the Court in his favour against Satwant Kaur which was not being complied with, thus, Satwant Kaur was not entitled to the grant of maintenance in proceedings under Section 125 of the Code of Criminal Procedure. The Additional Sessions Judge ignored the decree passed by the trial Court on the ground that an appeal was pending in the High Court. Mr. Suresh Amba has produced a copy of the order of the High Court in F.A.0. No. 218M of 1986 Satwant Kaur v. Piara Singh, decided on September 1, 1987 by Gokal Chand Mital, J. The appeal was dismissed. The judgment and decree of the trial court for restitution of conjugal rights was maintained. The matter was considered by Balraj Tuli, J. as far back as 1974 in Atma Ram Sharma v. Manjit Rani alias Ram Murti and anr., 1974 Chandigarh Law Reporter 217. It was held that when there was a decree for restitution of conjugal rights passed by a civil court in favour of a person against his wife which was not being complied with the wife could not apply to the Magistrate for the grant of maintenance under Section 488 of Criminal Procedure Code ( old Code). The Magistrate was not justified in granting maintenance allowance. Similar view was taken by K.S. Tiwana, J. in Surjit Singh v. Gurmel Kaur and others, 1977 PLJ 293, and Joginder Singh v. Dalbir Kaur alias Balbir Kaur, 1980 P.L.R. 665. In view of the consistent decision of this Court, as referred to above, Satwant Kaur could not be allowed maintenance under Section 125 of the Code of Criminal Procedure for the simple reason that a decree for conjugal rights was passed against her which was not being complied with."

Applying the ratio of the judgment to the facts and circumstances obtaining in the present case, learned trial Court correctly ordered on 2nd May, 1989 that the wife''s application under Section 125 of the Criminal Procedure Code cannot be proceeded with and decided till the decree for restitution of conjugal rights made by Agra Civil Court against her on 30th May, 1988 subsists and remains uncomplied with

Learned counsel for the respondent has referred me to the observations made in State of Madhya Pradesh v. Yashpal, 1964 Madhya Pradesh Law Journal (short notes) 131, Harbans Lal v. Ganga Devi, 1976 Chandigarh Law Reporter (Punjab and Haryana) 250, Savitri v. Govind Singh Rawat, 1986(1) Recent Criminal Reports 83 : 1986(1) Chandigarh Law Reporter 331 and Babulal v. Sunita alias Shanu. 1987(1) Recent Criminal Reports 505 (M.P.) : 1986(1) All India Criminal Law Reporter 418 and urged that there is no bar under Section 125 Cr. P. C to grant of maintenance to a wife against whom a decree for restitution of conjugal rights has been passed. There being no express prohibition, the Supreme Court in the case of Smt Savitri (supra) held that interim maintenance pending final disposal can be granted and observed that it is the duty of the court to interpret the provisions of Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the Legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as offering an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. notwithstanding the offer or willingness of the husband. if the Magistrate is satisfied that there is a just ground for so doing. Section 125 Cr.P.C. is a provision with a social object and the interpretation of this section should be in such a manner that the object of the provision, as indicated, is served. Law is a social mechanism to be used for the advancement of the society. It should not be allowed to be a dead weight on the society. While interpreting ancient texts, the Courts must give them a liberal construction to further the interests of the society. The authorities cited are on distinguishable facts and lose their persuasive value because in this case also adinterim maintenance has duly been fixed and paid till 30th May, 1988 and was on satisfaction of the preconditions obtaining in second proviso below subsection (3) of Section 25 that the learned trial court made the order dated 2nd May, 1989. The argument raised by the learned counsel for the respondent is thus wholly without merit.

In result Criminal Misc. No. 782 of 1990 succeeds and is allowed. Impugned order dated 24th August, 1990 of the learned, Additional Sessions Judge, Kapurthala, is vacated and the order passed by the learned trial Court on 2nd May, 1989 is restored.