Sardar Surjeet Singh vs Smt. Rajendra Kaur

Palok Basu, J.—The question involved in the present revision is:

Should a magistrate dismiss an application by wife for maintenance allowance only because the husband has obtained a decree for restitution of conjugal rights?

The relevant facts are as under:

The Respondent Srat. Rajendra Kaur, for short wife, is the wife of applicant Sardar Surjeet Singh, for short husband, and out of the said wedlock a daughter had been born to the applicant; his family members were insisting upon more goods and money as sufficient dowry was not parted with at the marriage; since 1980 the applicant has been neglecting the wife and the daughter and did not care for their living. Consequently an application u/s 125 Code of Criminal Procedure was filed by the applicant claiming Rs. 500/- for herself and Rs. 300/- for the child as maintenance allowance. She examined four witnesses including her self and filed several letters. She also filed a certified copy of the judgment dated 29-1-1983 passed by the Matrimonial Court at Gonda decreeing the husband''s suit No. 44 of 1982 for a decree for restitution of conjugal rights in order to show that the husband had not gone to fetch her as was directed in the decree.

The husband denied the allegations made by the wife and asserted that his in-laws were insisting that he should live in Faizabad. The wife left company voluntarily forcing him to file the suit. He never refused to maintain or neglected the wife and the daughter. The wife had deserted the husband within about 20-25 days of the marriage and she bears an independent outlook and does not want to live with him. He examined three witnesses including himself.

The trial court dismissed the said application u/s 125 Code of Criminal Procedure by his order dated 21-2--83 and had recorded the following findings:

(i) The wife was unable to maintain herself and the child. The husband is an able-bodied man and helps his father in business and, therefore, has sufficient means to maintain the wife and the child and his lack of interest in the wife is well demonstrated.

(ii) Though the allegation of the husband was that he was prepared to take the wife to his house but he insists that he should come with the materials and ornaments she had taken away while leaving. The wife on the other hand insists that he should come to her house to take her. However, because of the decree for restitution of conjugal rights dated 29--1--1983 the question of making any payments as maintenance allowance does not arise.

The magistrate relied upon the case of Jiwan Singh Vs. Subedar and Another, and Geeta Kumari v. Shiv Charan Das 1975 Cri.L.J. Raj 137 and dismissed the petition with the added observation that the decree was binding upon both the parties.

Against the aforesaid judgment the wife took a revision to the Sessions Court which has been decided by the Additional Sessions Judge on 30-6-1983. The lower revisional Court held that since no evidence was led by either parties as to what had happened after the passing of the aforesaid decree of restitution of conjugal rights, it was not possible to infer that the wife refused to oblige and abide by the order of the civil court directing her to live with the husband. Though the Sessions Judge states in his judgment that lie has gone through the evidence on the record but no part of evidence has been referred to in the judgment on the basis of which he has proceeded to allow the revision and directed a sum of Rs. 300/- and Rs. 100/- to be paid as maintenance allowance to the wife and the child respectively from the date of his judgment dated 30-6-1983. The only reason in the judgment is that the civil suit was filed by Surjeet Singh the husband in order to defeat the just claims of the wife claiming maintenance for herself and the daughter. At best, this may be an inference but certainly not the discussion of evidence. In any case, if threadbare discussion of evidence of the parties was to be done, the matter ought to have been remanded to the magistrate''s court rather than taking upon the burden by the revisional court itself to interpret the evidence.

Sri Z. Zilani, learned Counsel for the applicant, has cited the following cases:

(I) 1984 Vol. 11 Crimes--Short Notes p. 80 (2) N.M. Velayudhan Vs. P. Sukumari, (3) 1971 All. Cri. Reports p. 173 (4) Fakruddin Shamsuddin Saiyed Vs. Bai Jenab, (5) AIR 1925 Mad 1218.

Sri Shanti Prakash, learned Counsel for the opposite party has, however, relied upon the following decisions:

(1) 1988 L.L.J. 232 (2) 1989 L.L.J. . 407 (3) Jiwan Singh Vs. Subedar and Another, (4) 1975 Cr. L.J. Rajasthan 137 : 1989 LLJ 60.

Not much purpose will be achieved if we go into the rulings cited aforesaid because of the legal position which may be discussed here.

In the Criminal Procedure Code 1898 (old), Section 488 was the equivalent section of Section 125 Code of Criminal Procedure of 1973 (new). The definition of the word "wife" in the old Code did not include a divorcee. By bringing in an Explanation to Sub-section (1) to Section 125 in the new Code, the Legislature has expanded the definition of ''wife" so as to include even a divorcee. Needless to say, in the common parlance a divorcee is certainly not a wife but by legal fiction for the purposes of Section 125 Code of Criminal Procedure and the allied provisions, a ''divorcee'' shall have to be treated as a wife. The Explanation may be quoted here for ready reference:

125 (I) (b) "a divorcee" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

A decree for restitution of conjugal rights, if not obeyed by the wife, may at best entitle the husband to obtain a decree for divorce. The earlier decree may only he a stepping-stone for decree of divorce. Notwithstanding this legal position the Explanation added entitles a wife who herself sought divorce or who is divorced by the husband to be entitled to claim maintenance allowance. Therefore, it must have to be concluded that it is only the "neglect" or "refusal to maintain" which becomes the paramount consideration available to the magistrate in a proceeding u/s 125 Code of Criminal Procedure for directing a maintenance allowance to be paid to the wife and the child. Any other interpretation is likely to impair the beneficial provision thus making it impossible for the wife and the child unable to maintain themselves, to have an allowance from the husband whether divorced or not who had "neglected" or "refused to maintain.

Viewed from this angle the aforesaid rulings cited by the learned Counsel for either side lose their significance. However, only a reference will have to be made to the two decisions cited in the magistrates judgment which have been relied upon by the learned Counsel for the applicant.

In the case of Jiwan Singh Vs. Subedar and Another, it was held that the magistrate had discretion to pass an order of maintenance, yet it must be exercised on sound judicial principles. Husband was not to be compelled to maintain a wife who refuses to obey the order of the civil court directing her to live with the husband. Where subsequent to the decree for restitution of conjugal rights the wife had filed two suits against the husband for recovery of dower and dowry and she refused to live with the husband on the apprehension that she might be got to withdraw the suits, such a refusal was held bad. That case, therefore, is distinguishable on facts. Moreover, it was a ruling under the old Code and the parties were governed by the Muslim Law.

In the case of Smt. Geeta Kumari v. Shiv Charan Das 1975 Cri.L.J. Raj 137 more or less the same principles have been enunciated. The said case is also distinguishable on facts.

Coming to the merits of the case, it has to be noted that the magistrate has not adverted to the evidence adduced by the parties concerning neglect or refusal to maintain by the husband justifying a separate living by the wife and the child. Even the lower revisional court did not advert to any evidence in order to allow the wife''s claim of maintenance. Both the courts below are further silent on the question as to what were the exact directions contained in the judgment of the said Matrimonial court. Unless categorical findings on these issues come, no maintenance allowance can be granted to the wife or the child.

In view of the aforesaid discussion this revision is allowed, the impugned judgments passed by the magistrate and the learned Sessions Judge are set aside and the matter is sent back to the court of the magistrate who is directed to decide the application u/s 125 Code of Criminal Procedure in accordance with law after recording necessary finding based on evidence existing on the record. He will do so, as far as possible, within a period of three months from the date on which the lower court record reaches his court along with a certified copy of this judgment after affording opportunity to the parties to argue the matter afresh.