Piara Singh vs Satwant Kaur and others

A.L. Bahri, J.—Piara Singh, the husband, has filed this petition u/s 482 of the Code of Criminal Procedure for quashing order dated December 3, 1986 (P.1) passed by Additional Chief Judicial Magistrate, Hoshiarpur and order dated July 30, 1987 (Annexure P/3) passed by Additional Sessions Judge, Hoshiarpur on proceedings u/s 125 of the Code of Criminal Procedure. The Magistrate on the application of Satwant Kaur, the wife, allowed maintenance to her at the rate of Rs. 450/- per mensem and a sum of Rs. 300/- per mensem to Pardeep Singh, the son of the pal ties. The Additional Sessions Judge reduced this amount on revision filed by Piara Singh. The maintenance allowed to Satwant Kaur was reduced from Rs. 450/- to Rs. 350/- per mensem and for Pardeep Singh from Rs. 300/- to Rs. 230/- per mensem.

The contention of Mr. Suresh Amba, Advocate, for the Petitioner, is that the Additional Sessions Judge completely ignored the fact that a decree for restitution of conjugal rights had been passed by the Court in his favour against Satwant Kaur which was not being complied with and Satwant Kaur was not entitled to the grant of maintenance in proceedings u/s 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.O. No. 218-M 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 Ram alias Ram Murti and another 1974 C .L.R. 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 u/s 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 P.L.J. 293, and Joginder Singh v. Dalbir Kaur alias Balbir Kaur (1980) 28 P.L.R. 665. In view of the consistent decision of this Court as referred to above, Satwant Kaur could not be allowed maintenance u/s 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.

There is another aspect of the case. Pardeep Singh is admittedly son of the parties. It is the duty of the father to maintain his child. It is immaterial whether the child is living with the mother. Learned counsel for the petitioner argued that Satwant Kaur is also an earning hand and no maintenance for the child should be allowed. This contention cannot be accepted. The fact that Satwant Kaur was earning was considered by the Courts below while fixing maintenance for the child.

For the reasons recorded above, this petition is partly allowed. The order of the Magistrate and that of the Additional Sessions Judge are quashed to the extent they provide maintenance to Satwant Kaur. However, these orders will remain in force qua maintenance allowed to Pardeep Singh. There will be no order as to costs in this petition.