Jatinder Kumar Gabha vs Usha Gabha

K. K. Srivastava, J.

The petitionerJatinder Kumar Gabha seeks quashing of complaint filed under Section 125 of the Code of Criminal Procedure, copy annexure P1, filed by respondent No. 1 wife Smt. Usha Gabha on her behalf and on behalf of her two minor children respondent No. 2Ms. Charu daughter of the petitioner and respondent No. 3Master Nikhil son of the petitioner, under her guardianship and quashing of impugned orders annexures P2 and P4, proceedings subsequent thereto pending in the court of Judicial Magistrate 1st Class, Pathankot. The respondent No. 1 wife Smt. Usha Gabha was married with the petitioner on 24.4.1983 at Ludhiana. The marriage was duly consumated and two children were born out of the wedlock who have been arrayed as respondent Nos. 2 and 3 and are represented through their guardianmother respondent No. 1. The petitioner is alleged to have subjected his wife Smt. Usha Gabha to cruelty on the demand of dowry and he misbehaved with her, physically assaulted her and made her life miserable. The behaviour of the petitioner led the respondent No. 1 wife to leave the matrimonial house with her two minor children and to live with her mother and brothers at Pathankot but finding herself unable to sustain herself and her children from the meagre resources which she had from part time teaching job, she moved an application under Section 125 of the Code of Criminal Procedure in the court of Sub Divisional Judicial Magistrate, Pathankot and claimed a sum of Rs. 500/ as maintenance for herself and the same amount for each of the two minor children. She alleged that the respondent was employed and his monthly income was not less than Rs. 5,000/ per month. This application for maintenance came up for hearing before Sh. V. P. Soni, PCS, Judicial Magistrate 1st Class, Pathankot being criminal application No. 20/3 of 4.5.1994 and was decided vide judgment and order dated 24.1.1996, copy Annexure P2. The petitionerhusband who was impleaded as respondent in the application under Section 125 Cr.P.C. did not appear in the court of Judicial Magistrate 1st Class, Pathankot to contest the application and allowed the same to proceed ex parte. By the judgment copy Annexure P2, the learned Judicial Magistrate 1st Class, Pathankot, allowed the application for maintenance and granted maintenance at the rate of Rs. 400/ per month to respondent No. 1 wife Usha Gabha and a sum of Rs. 300/ per month for each of the two minor childrenrespondent Nos. 2 and 3 from the date of the application. The petitioner, it appears, did not provide for the maintenance allowed by the Judicial Magistrate 1st Class to her and her minor children and moved an application under Section 125(3) of the Code of Criminal Procedure against the petitioner husband in the court of Sub Divisional Judicial Magistrate, Pathankot Sh. V. P. Soni, copy Annexure P3, on 20.12.1996 praying that the respondents be directed to pay a sum of Rs. 31,000/ as maintenance allowance and the recovery of the amount be effected by issuing conditional warrants of arrest of the respondent husband/judgment debtor. A perusal of Annexure P4 dated 22.1.1998 passed by Sub Divisional Judicial Magistrate, aforesaid shows that conditional warrants of arrest issued against the petitionerhusband were received unexecuted when fresh conditional warrants of arrest were ordered to be issued. In the meantime a joint petition under Section 13B of the Hindu Marriage Act was filed by the petitionerhusband and respondent No. 1 wife in the court of Additional District Judge, Ludhiana, in which the petitionerhusband and wife Usha made the following statement, copy Annexure P6 :

"We were married on 24.4.1983. We are living separately since March, 1989. Despite efforts by wellwishers, there could not be any reconciliation. We have now decided to get the marriage dissolved by a decree of divorce by mutual consent. The joint petition is signed by both of us and is correct. The second party that is Usha has received amount in lumpsum as permanent alimony and for maintenance herself and the children. It has also been decided that the children shall remain in the custody of the second party i.e. Usha."

This statement was recorded by Addl. District Judge, Ludhiana on 14.9.1994 and on its basis judgment was delivered by Shri G. S. Khurana, Addl. District Judge, Ludhiana in the Hindu Marriage Act case No. 65 of 1993 dissolving the marriage between Jatinder Kumar Gabha and his wife Smt. Usha Gabha by the decree of divorce by mutual consent. A copy of the judgment has been placed on the record as Annexure P7.

The petitionerJatinder Kumar Gabha has prayed for the quashing of the application filed under Section 125 of the Code of Criminal Procedure and the impugned orders on the ground that the respondentwife Smt. Usha Gabha has made a statement before the Matrimonial Court i.e. the court of Addl. District Judge, Ludhiana, about receiving in lumpsum amount of alimony as well as maintenance for herself and for her minor children and that the minor children were to remain in her custody.

Notice was issued to the respondents who put in appearance and filed written reply contending inter alia that Section 125 Cr.P.C. uses the expressions wife which includes the divorced wife and as such the respondent No. 1 is entitled to get maintenance under Section 125 Cr.P.C. for herself as well as for her minor children. She has contended that minor children cannot be deprived of their right under Section 125 Cr.P.C. The further contention of the respondents is that the right of the minor children to be maintained by their father continues and it does not admit to any extent. The minor children 2 and 3 are, in law, entitled to claim maintenance from their father.

I have heard the learned counsel for the petitioner and the learned counsel for the respondents and have carefully perused the impugned complaint and the orders and the record of the case.

There is no dispute regarding the respondent No. 1wife Smt. Usha Gabha in reaching a settlement in the divorce petition with her husband, the petitionerJatinder Kumar Gabha, seeking divorce by mutual consent under Section 13B of the Hindu Marriage Act and she received amount in lumpsum in lieu of alimony as well as maintenance for herself. Once the respondent No. 1wife entered into a compromise with her husband and agreed to accept in lumpsum the amount of alimony and maintenance, she cannot turn around and take the plea that being a divorced wife she was included in the expression wife used under Section 125 of the Code of Criminal Procedure and was entitled to claim maintenance from her divorced husband. It could have been a different matter if no such agreement or adjustment had taken place then the right of a divorced wife under Section 125 Cr.P.C. could have been exercised against the divorced husband for claiming the amount of maintenance. Therefore, the contention of the petitioner has merit in so far as the maintenance awarded to the respondent No. 1wife is concerned and his petition against her deserves to be allowed. However, so far as the minor children 2 and 3 are concerned, they, despite the decree of divorce granted by the matrimonial court to the petitioner and respondent No. 1 continued to be the children of the petitionerfather as well as the respondent No. 1wife. The interest of the minors is of paramount consideration and even their mother could not act contrary to their interest in reaching with a settlement regarding the divorce by mutual consent with her husband. The petitioner, therefore, cannot seek the quashing of the impugned order of maintenance passed on the application under Section 125 of the Code of Criminal Procedure insofar as the minor children are concerned. The petitioner is still liable to maintain his minor children and should continue to pay the amount of maintenance to them.

Resultantly, the petition is partly allowed. The impugned application under Section 125 of the Code of Criminal Procedure and the impugned orders Annexures P2 and P4 are quashed insofar as the amount of maintenance granted to the respondent No. 1wife is concerned. The application of respondents 2 and 3 and the order granting maintenance to the minor children shall however remain intact.