Maintainability of application u/s 125 cr.p.c. by wife
Kunal Sarkar
(Querist) 21 February 2013
This query is : Resolved
The wife filed two cases on the same day upon her husband. one is the application under sec. 125 of Cr.P.C. for getting separate maintenance for her self and her two minor children on the ground that,
"she was subjected to physical and mental torture due to non-fulfillment of frequent demand of money by her husband for his business purpose she left rented house on December 2007 of her husband along with her two minor children and her mother (who reside with them)and took another rented house in the same locality."
On the other hand the wife in her Divorce petition stated that,
"1. her husband never allowed her to go out side and to mix with the neighbors and if she desire so her husband and his family members scolded with abuse words and in many occasion physically tortured by her husband."
"2. the cruel behavior and inhuman torture of her husband and family members become more day by day for non-payment of demanded money she compelled to stay separately from her husband since 20-10-2007 along with her minor children and mother."
in this juncture whether two separate stories and two separate cause of action effect her case any way ?
Whether the wife entitled maintenance from her husband ?
please suggest if any similar case laws.
ajay sethi
(Expert) 21 February 2013
if wife is unable to maintain herself she would be enttitled to maintenance for herself and the children . it is not your case that wife is earning . she has made out a case why she left her matrimonal home .
you have to satisfy court that no maintenance is payable as she left you without any reason
ajay sethi
(Expert) 21 February 2013
No Maintenance u/s Crpc 125 if wife deserts husband
December 1, 2010
Uttaranchal High Court
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 201 Of 2006
Smt. Archana Gupta & Another .. Revisionists.
Versus
Sri Rajeev Gupta & Another .Respondents
Mr. M.K. Goyal, learned counsel for the revisionists. Mr. Rakesh Thapliyal, learned counsel for respondent no. 1. Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.
Dated: November 18, 2009
Hon’ble Alok Singh, J.
(By the Court)
Present revision has been filed by the wife under Sections 397/401 Code of Criminal Procedure read with Section 19(4) of Family Courts Act challenging the order dated 05.10.2006 passed by Principal Judge, Family Court, Dehradun refusing to grant maintenance to revisionist no. 1.
Heard Mr. M.K. Goyal, learned counsel for the revisionists, Mr. Rakesh Thapliyal, learned counsel for respondent no. 1 and Mr. S.S. Adhikari, learned A.G.A. for respondent no. 2.
Learned counsel for the revisionists contended that finding of the learned Principal Judge, Family Court, Dehradun on issue no. 1 that wife is living separately without any sufficient cause is perverse.
In nutshell, brief facts of the present case are that wife/revisionist no. 1 preferred an application under Section 125 Cr.P.C. against the respondent no. 1 seeking 2
maintenance for herself and for their minor son, revisionist no. 2. The main grounds of claim mentioned in the application are that husband has developed bad habits like consuming alkahol, gambling and adultery. That husband wanted to dispose of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. That husband has taken loan to meet his bad habits. It is further contended that husband is living separately and is not maintaining the wife and son. In paragraph no. 8 of the application, it is pleaded that wife is working in inter-college, Tanko, Saharanpur temporarily from where she is getting Rs. 2200/- per month.
Husband filed his written statement before the trial Court and denied the contentions made by the wife in the application. In defence husband has specifically pleaded that wife is under the influence of her father. That under the pressure of wife and her father husband/opposite party had to execute permanent lease of his property in favour of the wife pertaining to property of House No. 416, Block-III, Khurbuda Mohalla, Dehradun. It is further contended that at the time of execution of lease, it was agreed between the parties that from the date of execution of lease wife would start living with the husband and her father would not interfere in the matrimonial affair of the husband and wife. It was further pleaded by the husband that it is the wife who wanted to live separately under the influence of her father. Further case of husband is that she resigned from the service from where she was getting Rs. 3, 000/- per month and joined the service at Saharanpur for Rs. 2200/- per month, under the influence 3
of her father. No prudent man shall leave the service of the higher pay scale and shall join the service of the lower pay scale. It was further contended by the husband that under the influence of her father, wife neglected the husband. The further case is that wife is residing separately without any cause and reason.
Learned Principal Judge, Family Court, Dehradun has framed three issues in the matter.
1. As to whether wife is living separately without any appropriate reasons from the husband.
2. As to whether the applicant is unable to maintain herself and her son, applicant no. 2.
3. As to whether the applicant is entitled for any maintenance for herself and minor son.
Learned trial Court, while deciding the issue no. 1, has recorded finding of fact that without any sufficient or reasonable cause wife is living separately. Wife has refused to join company of husband despite the fact that husband wanted her to live with him. It was further held by the learned trial court that wife is under the influence of her father and could not prove allegations of bad habits like consumption of alcohol, gambling and adultery against the husband. While deciding the issue nos. 2 and 3, learned trial Court declined to grant any maintenance to the wife on the basis of finding recorded in issue no. 1 and on the ground that wife is employed and getting Rs. 2200/- per month. However, learned trial Court granted Rs. 2000/- per month as maintenance for applicant no. 2, i.e. minor son.
Sub Section 4 of Section 125 Cr.P.C. can be pressed in the present matter, which reads as under: 4
“(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] 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”.
From the perusal of sub Section 4 of Section 125, if wife refused to live with her husband without any sufficient reason, she would not be entitled to receive any maintenance. Learned trail court has recorded finding of fact that wife is residing separately from her husband without any reasonable cause and reason and refused to live with her husband despite offer by the husband to live together.
I, myself, carefully perused the statements recorded by learned trial court. I find no perversity in the findings of fact recorded by learned Principal Judge, Family Court, Dehradun of the fact that wife is living separately without any sufficient cause and reason and she refused to live with her husband without any sufficient reason. In view of findings that wife is residing separately from her husband without reasonable cause and reason, her application seeking maintenance was rightly rejected by the learned trial Court.
Wife is entitled for maintenance from the husband under sub Section a (1) of Section 125 Cr.P.C., if she is unable to maintain herself. As per the admission made by the wife in the application under Section 125 CrPC and as per the finding recorded by the learned Principal Judge, 5
Family Court, Dehradun, wife is employed in a school and getting salary of Rs. 2200/- per month. Revisionist/wife nowhere says that out of this amount of Rs. 2200/- she is unable to maintain herself. On this ground also revisionist is not entitled for any maintenance from the husband.
Having perused the record and findings recorded by the Principal Judge, Family Court, Dehradun, I do not find any valid reason to interfere with the findings of fact recorded by the learned trial Court. The impugned judgment is hereby confirmed. Revision is dismissed.
No order as to costs.
(Alok Singh, J.)
18.11.2009
Amit
Raj Kumar Makkad
(Expert) 21 February 2013
Wife and children are duly entitled for the grant of maintenance from you and minor change of stand in two separate proceedings has nothing to do with their legal right.
