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Judgment
J.M. Tandon, J.
Shrimati Rama, respondent is the wife of Jugal Kishore, petitioner. She filed an application for maintenance under Section 125, Criminal Procedure Code against the petitioner on 30th September, 1981. The trial Court vide order dated 20th July, 1983, accepted the application and fixed the maintenance payable by the petitioner to the respondent at Rs. 250\\ per month with effect from the date of the application. The petitioner filed revision against the order of the trial Court which was dismissed by the Additional Sessions Judge, Chandigarh, vide order dated 23rd April, 1984. The petitioner has assailed the adverse orders passed against him in the present petition under Section 482, Criminal Procedure Code.
The Respondent is not living with petitioner. According to her, the petitioner has developed illicit relation with a married lady living in the adjoining room in the same house. The trial Magistrate as also the Additional Sessions Judge have found no substance in this allegation levelled by the respondent against the petitioner. The learned Additional Sessions Judge has opined that irrespective that the Respondent is not living with the petitioner without any good reason, she is entitled to maintenance under Section 125 of the Code of Criminal Procedure.
The learned counsel for the petitioner has argued that in view of the finding that the respondent is not living with her husband without any good reason, she is not entitled to maintenance under Section 124 of the Code or Criminal Procedure. Reliance has been placed on Raghbir Singh v. Krishna, 1982, Criminal Law Times 395. The contention of the learned counsel for the petitioner must prevail.
The relevant portion of the Section 125, Criminal Procedure Code reads:
"125 (1) If any person having sufficient means neglects or refuses to maintain:
(a) his wife, unable to maintain herself, or
(b) ..... ..... ...... ...... ....
(c) ..... ..... ...... ...... ....
(d) ..... ...... ..... ....... ....
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
xx xx xx xx
Explanation For the purposes of this Chapter,
(a) ..... .... ..... ......
(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) ..... ..... ...... .......
(3) ...... ..... ....... .......
(4) No wife shall be entitled to receive an allowance from her husband this section if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent".
It is clear that a wife claiming maintenance under Section 125, Code of Criminal Procedure, must prove that her husband neglects or refuses to maintain her under subsection (1) and she has not refused to live with him without any sufficient reason under subsection (4). In other words, if a wife refuses to live with her husband without any sufficient reason, she cannot claim maintenance from him under Section 125, Criminal Procedure Code. This is also the ratio of Raghbir Singh''s case (supra)
It has been found as a fact that the Respondent is not living with her husband without any sufficient reason. The learned Additional Sessions Judge has opined that the Respondent shall, still, be entitled to the maintenance under Section 125 of the Code of Criminal Procedure because a divorced wife is entitled to maintenance thereunder irrespective of the fact that she does not live with her divorced husband. The reasoning adopted by the learned Additional Sessions Judge is erroneous. A divorced wife is not expected to live with her divorced husband. The law specifically provides that a divorced wife is entitled to maintenance from her husband under Section 125, Criminal Procedure Code. A wife during the subsistence of the marriage is expected to live with her husband. It has, therefore, been specifically provided in subsection (4) of Section 125, Criminal Procedure Code that, if she refuses to live with her husband without any sufficient cause, she will not be entitled to maintenance from him. Under these circumstances, the learned Additional Sessions Judge has erred in holding that the respondent is entitled to maintenance from her husband irrespective that she is not living with him without any sufficient reason.
In the result, the petition is allowed, the impugned orders are set aside and the application of the Respondent for maintenance is dismissed.
Revision allowed.