Raghbir Singh vs Krishna

D.S. Tewatia, J.—This is husband''s revision petition challenging the order of the Additional Sessions Judge, Hissar, holding that the wife Smt. Krishana respondent herein was entitled to maintenance and directing the trail Court to assess the quantum of maintenance which Court had earlier dismissed the petition of the wife for maintenance

The short question that falls for consideration in this revision petition is as to whether granting to a wife the maintenance from her husband is dependent upon the fact as to whether the offer of the husband to keep the wife is genuine or not. Relevant provisions of Section 125 are in the following terms :--

Order for maintenance of wives, children and Parents, (1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable, to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself, or herself a Magistrate of the first class may, upon proof of such neglect OF 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 ;

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(4) No wife shall be entitled to receive an allowance from her husband under 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.

The learned Additional Sessions Judge has expressed the view that even if the wife had failed to establish her case that the husband had neglected or refused to maintain her and also further fails to establish that she had sufficient cause to stay away from the husband, even then she would be entitled to the grant of maintenance if the Court is of the opinion that the offer made by the husband to maintain her is not genuine.

This view finds expression in para 11 of the judgment which deserves noticing in its entirety :

Coming to the question whether wife has shown sufficient grounds for living separately and claiming maintenance this question will arise only if offer of the husband to maintain (the wife is genuine), I am of the view that wife has failed to show sufficient grounds for living separately from her husband and for claiming maintenance. The alleged second marriage has not been proved by reliable evidence Even this fact has not been proved by reliable evidence that the husband has kept a Mistress. The allegation of cruelty has not been proved by reliable evidence. In these circumstances, I held that wife has not shown sufficient grounds for living separately from the husband and for claiming maintenance, but since it has been found that offer of the husband to maintain the wife is not genuine, I am of the view that wife is entitled to an order of maintenance in her favour and that the learned Chief Judicial Magistrate was wrong in dismissing the petition.

Perusal of Para 11 of the judgment of the Additional Sessions Judge would show that he has positively held that the wife had failed to show sufficient ground for living separate from her husband and claiming maintenance. But since he further held that the offer of the husband to maintain the wife was not genuine, no he decided that the wife was entitled to an order of maintenance in her favour.

Perusal of Sub section (1) of Section 125 would show that a Magistrate having jurisdiction in the matter could order maintenance to the wife if he was satisfied that the wife claiming maintenance had inter alia established before him (i) that the husband had sufficient means to maintain her ; (ii) that despite that fact he had neglected to do so or had refused to do so.

Perusal of sub section (4) would show that a wife is not entitled to receive allowance from her husband inter alia if without any sufficient reason she refused to live with him.

Reading the provisions of sub-section (1) and (4) cumlatively, would show that even if the Court comes to a finding that till the filing of the petition the husband had neglected or refused to maintain her, even then the Court would decline to pass an order of maintenance in favour of the wife if the wife refuses without any sufficient cause to live with him.

In the present case both the Courts below have concurrently held that the wife had not shown sufficient grounds for living separately from the husband and for claiming maintenance i.e. the wife had failed to establish that the husband had neglected or refused to maintain her. The right of the wife to be maintained by the husband stems from the performance of the marital duty. A wife which is not prepared to do that cannot claim maintenance as a matter of right under the statute. It is only when the Court inter alia comes to a finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance, as in that case it could be said that while the wife was prepared to perform her part of the marital duty, she had been prevented from doing so by the husband. Otherwise, it would come to this that a wife may decide on its own to live away from the husband and seek maintenance without any kind of fault on the part of the husband. She might says. "I do not like your face and so I would live away and since I am your wife, it is your duty to maintain me wherever I may choose to live."

For the reason afore mentioned I set aside the order of the learned Additional Sessions Judge and restore that of the trial Court and allow the revision petition but with no order as to cost.