Yashwant Shilpkar vs Samta Shilpkar and Another

Narain Singh ''Azad'', J.—By order dated 19-6-2001 passed in respondents maintenance application filed u/s 125, Cr.PC and registered as M.J.C. No. 50/2001, J.M.F.C, Jabalpur directed the petitioner to pay Rs. 1000/- p.m. to respondent No. 1 and Rs. 1500/- p.m. to respondent No. 2 as maintenance. Both the parties challenged the aforesaid order in Cr.R. Nos. 281/2001 and 282/2002 respectively which are disposed of by IV A.S.J., Jabalpur by a common order dated 30-1-2002. The petitioner sought quashment of order dated 19-6-2001 passed by J.M.F.C. in MJC No. 50/2001 whereas the respondents filed the revision seeking enhancement in the rate of maintenance.

On perusal of record of MJC No. 50/2001 it is noted that the maintenance petition was filed on 11-2-94 which for the first time stood disposed of on 16-11-99 in favour of respondent No. 2 Suvigya only. While holding respondent No. 1 not entitled for maintenance J.M.F.C. directed the petitioner to pay an amount of Rs. 500/- as maintenance to respondent No. 2 since the date of filing the petition. The respondents challenged the aforesaid order in Cr.R. No. 119/2002, on 21-8-2000 learned IV A.S.J. remanded the case with following directions :--

(1) The learned Magistrate shall call for salary details of the respondent for the last financial year from department in the alternative respondent may file income tax returns of financial year of 1999-2000 to prove his actual salary.

(2) The learned Magistrate shall also call details of scholarship being paid to the petitioner No. 1 from her officer head, in the alternative the petitioner No. 1 can herself file certificate from her officer head regarding scholarship and remuneration being paid to her.

(3) The learned Magistrate shall afford a chance to both the parties for further cross-examination of the parties on the point of income & dependency only.

(4) The learned Magistrate shall see that interim maintenance as already has been due before passing of impugned order on 16-11-99 is paid to the petitioner within reasonable time.

(5) The learned Magistrate shall decide case within 5 months from the date of this order.

(6) Both the parties are directed to appear before the learned Magistrate on 26-8-2000.

On receipt of record of MJC No. 50/2001, after order of remand, the J.M.F.C. against disposed of MJC No. 50/2001 on merits, by order dated 19-6-2001 wherein the petitioner is directed to pay Rs. 1000/- p.m. and Rs. 1500/- p.m. as maintenance to respondent Nos. 1 and 2 respectively on the basis of objective and exhaustive assessment of evidence of both the parties. The learned J.M.F.C. recorded affirmative findings that the respondents have no source of income of their own whereas the petitioner being capable of maintaining the respondents, has neglected to maintain them and thus respondents are entitled to receive maintenance from the petitioner. On the basis of appreciation of evidence, on the point of income of the petitioner and so also the expenses to be borne on the education of respondent No. 2, learned J.M.F.C. fixed the quantum. Then Revisional Court has also found to have appreciated and assessed the evidence of both the parties while confirming the findings of Lower Court.

While not resisting the grant of maintenance to respondent No. 2 it is submitted on behalf of the petitioner that by mutual agreement marriage between the petitioner and respondent No. 1 stood annulled on 5-11-97 in C.S. No. 23-A/97, therefore, she is not entitled for maintenance. But relying on Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, , it is dictated by Their Lordships of the Supreme Court in Savitri v. Govind, reported in 1986 Cr.LJ 48, that even if the earlier decree for restitution of conjugal rights is not complied with by the wife, a divorced wife has right to claim maintenance from the husband. By divorce the wife gets a new status as divorced wife and as such she is under no obligation to live under the roof of the husband. Thus when a husband refuses to pay maintenance to the divorced wife, unable to maintain herself, she is entitled to claim maintenance u/s 125, Cr.PC.

Since, I do not find any perversity in the findings recorded by J.M.F.C. on 19-6-2001, for granting maintenance to the respondents, this petition does not merit and is accordingly rejected at the stage of motion hearing.