Jasbir Singh vs Harjinder Kaur

Dr. (Mrs.) Sarojnei Saksena, J.

This is a revision challenging the order passed in Criminal Revision No. 14 of 1989 by Shri J.S. Pamma, Additional Sessions Judge, Faridkot, whereby petition filed under Section 125, Code of Criminal Procedure rejected by the trial Magistrate is allowed and maintenance is granted from the date of the petition.

Briefly stated facts of the case are that the parties were married in the year 1981. The husbandpetitioner filed a divorce petition on 19.8.1985 on the ground of desertion etc. The respondent contested the petition which was decreed on 2.9.1987. On 27.10.1987, the respondent filed a petition under Section 125, Code of Criminal Procedure. The petitioner contested the petition. Learned Magistrate dismissed the petition vide his order dated 18.2.1989. The respondent filed Criminal Revision No. 14 of 1989, wherein her petition filed under Section 125, Code of Criminal Procedure, was allowed.

Petitioner''s learned counsel contended that in the divorce petition, divorce was granted in favour of the petitioner on the ground of desertion. Respondent filed appeal against that judgment bearing F.A.O. No. 189M of 1987, which was disposed of on 9th March, 1995 as withdrawn. Thus, it is apparent that she accepts the finding of the matrimonial Court that she deserted the petitioner. This finding is binding on the Criminal Court. In view of Section 125, Code of Criminal Procedure, the respondent is not entitled to claim maintenance. It is further submitted that now she has remarried on 12.12.1993. On this count also, she is not entitled to claim any maintenance from the petitioner.

The respondent''s learned counsel submitted that both the parties have remarried and are living peacefully. Therefore, the respondent has withdrawn her appeal filed against the divorce decree. She is not interested in claiming maintenance from the petitioner.

Admittedly, in the divorce petition, a finding is recorded that the respondentwife has deserted the petitionerhusband and on this ground divorce was granted in petitioner''s favour. Respondent preferred an appeal against that decree but later on withdrew it. This finding of the Civil Court is binding on the Criminal Court. The Lower Revisional Court has failed to consider this legal aspect. Further, under Section 125, Code of Criminal Procedure, no wife can claim maintenance if without any sufficient reason, she refuses to live with her husband. On both these counts, I find that the respondent could not have claimed maintenance from the petitioner. Lower Revisional Court could not have granted maintenance from the date of the petition. Further, she has remarried on 12.12.1993.

In view of these facts, the revision is allowed. The Lower Revisional Court''s order is set aside and that of the trial Magistrate is restored.