Smt. Deo Mani vs Manna and Another

K.C. Dhuliya, J.—This application has been filed by Smt. Deomani wife of Manna, resident of Dengola Kalan, District Mirzapur against the judgment and order of the 3rd Additional Sessions Judge, Mirzapur dated 1st October, 1981 by which the learned Sessions Judge allowed the application of her husband Manna and set aside the judgment and order of the IVth Additional Munsif/ Magistrate, Mirzapur dated 18-9-1980, awarding Rs. 75/- P.M. as maintenance allowance u/s 125 Code of Criminal Procedure to her.

I have heard the learned Counsel for the applicant.

The brief facts of the case are that admittedly the parties were married according to Hindu religion. The applicant was being neglected and was not maintained by the opposite party, with the result, she was compelled to file an application u/s 125 Code of Criminal Procedure for maintenance allowance before the Magistrate. She has stated in her application that she is unable to maintain herself and has no other source of livelihood. The Magistrate, after considering the evidence, allowed her application from the date of filing of the application i.e., 6-5-1978 at the rate of Rs. 75/- P.M. Aggrieved by the order of the Magistrate, Manna, opposite party, preferred a revision before the Sessions Judge, Mirzapur. The learned Additional Sessions Judge took a curious view in the matter and held that since civil litigation is pending between the parties, she is not entitled to get maintenance allowance and he allowed the revision of the opposite party and set aside the order of maintenance granted to the applicant. It will be relevant to refer here the nature of civil litigation between the parties. It has come in the judgment of the Magistrate that the applicant filed a civil suit for injunction against her husband Manna not to marry with one Km. Geeta. The nature of that civil litigation has nothing to do with the criminal proceedings u/s 125 Code of Criminal Procedure. The learned Additional Sessions Judge has referred the case of Smt. Premwati Vs. Mahesh Chandra, in which a learned Single Judge of this Court has disallowed the maintenance u/s 125 Code of Criminal Procedure on the ground that Premwati was already getting maintenance allowance u/s 24 of the Hindu Marriage Act. I have my own doubt about this decision, but in the present case, this authority is not applicable at all.

As I have discussed above that the proceedings u/s 125 Code of Criminal Procedure are independent of any civil litigation between the wife and husband with respect to their marital relations and the court, while dealing u/s 125 Code of Criminal Procedure cannot reject the application of the wife on the ground that since civil litigation is pending between the parties, she has no right to move the application. I, therefore, set aside the judgment and order of the IIIrd Additional Sessions Judge, Mirzapur dated 1st October, 1981 and restore the judgment of the Munsif/Magistrate, Mirzapur.

I, therefore, allow this revision.

Revision allowed.