Raj Kumar Dubey @ Raju vs Smt. Rekha Dubey @ Gothal Bai

S.C. Sinho, J.—This criminal revision has been filed u/s 397/401 of Code of Criminal Procedure, being aggrieved by the order dated 2.5.2005 passed in Criminal Revision No. 278/2004, passed by the IVth Additional Sessions Judge, Jabalpur, whereby the order dated 17.8.2004 passed in M.J.C. No. 109/03 by the learned Judicial Magistrate First Class, Jabalpur u/s 127 of Cr.P.C. was set aside. Hence, this revision petition is filed by the applicant/husband. The brief facts of the case are that the respondent/wife filed an application u/s 125 of Cr.P.C. for grant of maintenance before the JMFC First Class, vide order dated 10.2.1998 granted the maintenance of Rs. 300/- per month. After the order was passed, Civil Suit No. 15-A/01 was filed by the applicant / husband against the respondent / wife u/s 13(1) of the Hindu Marriage Act vide impugned judgment and decree dated 22.10.2002 it was held that the respondent wife is living in adulterous life and ex-party decree was granted. Thereafter the applicant filed an application u/s 127 (2) (3) and 125 (5) on the ground that respondent wife is living in adulterous life. The learned Magistrate vide order dated 17.8.2004 in M.J.C. No. 109/200 held that the respondent/ wife is living in adulterous life hence not entitled for maintenance u/s 125 of Cr.P.C.

Being aggrieved by the aforesaid order, the respondent/wife has filed a Revision Petition No. 278/2004, whereby vide impugned order dated 2.5.2005, the learned Sessions Judge held that the aforesaid decree of divorce on the ground of adulterous was granted ex-party, therefore, the applicant is liable to pay maintenance and quashed the order of learned Magistrate regarding payment of maintenance.

Learned counsel for the applicant Shri Soni submitted that respondent has filed a petition under Order 9 Rule (13) of C.P.C. for quashing the ex-party decree dated 22.1.2010 passed in Civil Suit No. 15-A/01, it is also dismissed and the aforesaid decree of divorce on the ground of adultery has become final.

Admittedly, in the instant case, the respondent /wife is a divorcee and the decree of divorce is passed on the ground that she is living in adulterous life. However, the aforesaid decree was passed ex-party, but the respondent''s application under Order 9 Rule (13) of C.P.C is also dismissed vide order dated 31.7.2007 in M.J.C. 03/04, hence the aforesaid decree has become final.

Hon''ble Apex Court in the case of Rohtash Singh Vs. Smt. Ramendri and Others, in para 5 and 6 has held as under:

(5) Sub-section (4) of Section 125, Cr.P.C. provides as under:

(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.

(6) Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by subsection (4) of section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstances on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance u/s 125 of the Code of Criminal Procedure.

In the case in hand, the respondent marriage life between the parties do not subsist. The decree of divorce is granted on the ground that wife is living in adultery life therefore, in view of Section 125 (4) she is not entitled for maintenance allowance. Accordingly, the revision is allowed and order dated 2.5.2005 passed in Cr. Appeal No. 278/2004, consequently, order dated 17.8.2004 passed in MJC No. 109/03 are hereby set aside.