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Mrs. Amina Mohammedali, Khoja Vs. Mohammedali Ramjanali Khoja and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petn. No. 310 of 1984
Judge
Reported in1985(2)BomCR267; (1985)87BOMLR274; 1985MhLJ988
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantMrs. Amina Mohammedali, Khoja
RespondentMohammedali Ramjanali Khoja and Another
Excerpt:
.....an order of maintenance can always be passed in favour of the wife even if the husband had obtained a decree for restitution of conjugal rights against her unless it is well established that she had wilfully deserted her husband and was not willing to stay with him without reasonable cause or sufficient reasons. 14 of 1979 in the court of the learned civil judge (junior division) at umbergaon on 17th april 1979 after the wife had made an application for maintenance on 23rd march 1979. this conduct on the part of the husband who subsequently obtained an ex parte decree for restitution of conjugal rights speaks volumes against him so eloquently and his ill intentions that he did not want to pay maintenance to his wife are well exposed......a paper decree for restitution of conjugal rights which he got ex parte. from such an ex parte decree passed against the wife, it cannot be inferred that the wife had for no rhyme or reason deserted the company of the husband. there may be reasons and reasons for her not to stay with her husband at the time when the husband had filed the civil suit at umbergaon court for restitution of conjugal rights. simply because such a decree exists, it would not be proper to refuse maintenance allowance to the wife. the facts and circumstances of our case show, as pointed out by the learned additional sessions judge himself, that there was sufficient material on record to come to a conclusion that the respondent-husband had, by his conduct, deserted his wife and it was he who had neglected and.....
Judgment:

1. An interesting question of law which arises for consideration in this criminal writ petition is whether a wife is entitled to an order of maintenance under the provisions of S. 125 of the Cr.P.C., 1973 against the husband who has obtained a decree for restitution of conjugal rights from a Civil Court of law.

2. The petitioner-wife, Mrs. Amina Mohammedali Khoja, made an application for maintenance under S. 125 of the Cr.P.C. 1973 in the Court of the learned Judicial Magistrate, First Class, Court No. 1, Pune, being Miscellaneous Application No. 204 of 1979, on 23rd March 1979 on various allegations against her husband, Mohammadali Ramjanali Khoja (hereinafter referred to as 'the respondent-husband'). The learned trial Magistrate who considered the evidence adduced before him, by an order dt. 28th February 1983, directed the respondent-husband to pay monthly allowance of maintenance at the rate of Rs. 100/- from the date of the application to the petitioner-wife and also ordered that he should pay cost of Rs. 100/- to her. Aggrieved by the said order, the respondent-husband carried the matter in revision to the Sessions Court at Pune being Criminal Revision Application No. 103 of 1983. The learned Additional Sessions Judge, Pune, who heard the said revision application was of the opinion that the petitioner-wife was not entitled to monthly allowance of maintenance as granted to her by the learned trial Magistrate because the respondent-husband had obtained a decree in Civil Suit No. 14 of 1979 filed by him in the Court of the Civil Judge (Junior Division), Umbergaon, against the wife for restitution of conjugal rights. On taking such a view of the matter he allowed the revision application and set aside the order passed by the learned trial Magistrate thereby dismissing the maintenance application of the petitioner-wife, by his order D/- 9th March, 1984. It is the said order that has been impugned by the petitioner-wife, in this writ petition.

3. Mr. Bhonsale, learned Advocate appearing on behalf of the petitioner-wife, urged that the impugned order passed by the learned-Additional Sessions Judge, Pune, is not sustainable in law inasmuch as it would not be a correct proposition in law that the wife would not be entitled to maintenance under S. 125 of the Cr.P.C. 1973 only because a decree for restitution of conjugal rights was passed against her. Mr. Bhonsale further urged that the record does not show that after obtaining such a decree the respondent-husband made any efforts to bring back his wife. Mr. Bhonsale also submitted that the suit for restitution of conjugal rights was filed by the respondent-husband on 17th April 1979 after the petitioner-wife had made her application for maintenance on 23rd March 1979 with a view to thwart the maintenance order which was likely to be passed against him. Controverting these submissions, Miss Shah, learned Advocate appearing on behalf of the respondent-husband, submitted that once it is held that the petitioner-wife had deserted the company of the respondent-husband for which a decree for restitution of conjugal rights was passed against her, it is more than sufficient proof that the wife was not interested in residing with her husband and in that case she is not entitled to any maintenance from him.

4. Now, it is important to note that although the learned Additional Sessions Judge, Pune, was of the view that there was sufficient material on record to infer that it was the husband who had, by his conduct, deserted the wife and it was he who had neglected and refused to maintain her who was unable to maintain herself (para 9 of his judgment) and still he was unfortunately cancelling the maintenance order passed in favour of the wife because of the law laid down by this Court in Sharadchandra Satbhai v. Indubai Satbhai 1978 Mah LJ 123. The learned Additional Sessions Judge quoted a paragraph from the said judgment as under :-

'Where on a petition by the husband for judicial separation under Section 10 of the Hindu Marriage Act on the ground that the wife had deserted the petitioner a decree for judicial separation is passed, the wife is not entitled to claim maintenance under S. 125 of the Cr.P.C. When the Civil Court has determined the issue of desertion and held that the wife has left her husband without reasonable cause and against his wish and without his consent, it is plain and simple that she has refused to live with her husband without any sufficient reason, and, therefore, the wife is not entitled to receive maintenance under S. 125. The fact that a decree for judicial separation has been passed in favour of the husband on the ground of desertion means that the wife is guilty of refusing to live with her husband.'

5. I am afraid this judgment of the Division Bench of this Court cannot be considered against the petitioner-wife in our case for the simple reason that facts and circumstances in both the cases are distinguishable. In the case before the Division Bench the husband had obtained a decree for judicial separation on the ground that the wife had deserted her husband. In the instant case a decree for restitution of conjugal rights was passed against the wife and perusal of the judgment passed in Civil Suit No. 14 of 1979 by the learned Civil Judge (Junior Division) Umbergaon on 20th August 1979 (Exh. 53) shows that some documents produced by the husband at the time of giving his oral evidence were perused by the learned Civil Judge and the plaintiff-husband's suit for restitution of conjugal rights was ex parte decreed. The record does not show that the wife had deserted the husband and was unwilling to stay with him without reasonable cause or sufficient reasons. It is also pertinent to note that after obtaining such a decree the respondent husband had not taken any effective steps to get the decree satisfied in the sense that he had made no genuine, honest and sincere efforts to see that his wife would come back to him. The husband in our case was interested only a paper decree for restitution of conjugal rights which he got ex parte. From such an ex parte decree passed against the wife, it cannot be inferred that the wife had for no rhyme or reason deserted the company of the husband. There may be reasons and reasons for her not to stay with her husband at the time when the husband had filed the civil suit at Umbergaon Court for restitution of conjugal rights. Simply because such a decree exists, it would not be proper to refuse maintenance allowance to the wife. The facts and circumstances of our case show, as pointed out by the learned Additional Sessions Judge himself, that there was sufficient material on record to come to a conclusion that the respondent-husband had, by his conduct, deserted his wife and it was he who had neglected and refused to maintain her although she was unable to maintain herself. When such was the conduct of the husband, the ruling of this Court referred to and relied upon by the learned Additional Sessions Judge would not go to the rescue of the respondent-husband. I am, therefore, of the view that the learned Additional Sessions Judge did not properly appreciate the law laid down by the Division Bench of this Court in the case of Sharadchandra Satbhai 1978 Man LJ 123 (supra).

6. We may beneficially refer here to a judgment of Division Bench of this Court in Fakruddin Shamsuddin Saiyed v. Bai Jenab, : AIR1944Bom11 wherein it was observed as under :-

'Under S. 489(2) the Magistrate has a discretion to cancel or modify his order in consequence of the civil Court's decision. The Magistrate's discretion under S. 489(2) must no doubt be exercised judicially, but it is a real discretion. It is not correct to say that the Magistrate is bound to cancel the maintenance-order made in favour of the wife under S. 488, because a civil Court has made an order for restitution of conjugal rights in favour of the husband. The Magistrate is entitled, and indeed bound, to satisfy himself that the husband is bona fide prepared to give effect to the order of the civil Court; that he is prepared to offer the wife a home which she ought to accept. The mere fact that the civil Court is satisfied on that point does not justify the Magistrate in surrendering his own discretion, he must be satisfied. The Magistrate is entitled to decline to revoke the maintenance order under S. 488, when there is no evidence before him as to what home the husband was prepared to offer the wife.'

From these observations made by the Division Bench of this Court it is more than clear that merely because a husband had obtained a decree for restitution of conjugal rights against the wife, the order passed in favour of the wife for maintenance under S. 488 of the Cr.P.C. (old) cannot be cancelled under S. 489 of the said Code. This being the position in law, let it be emphatically mentioned here that an order of maintenance can always be passed in favour of the wife even if the husband had obtained a decree for restitution of conjugal rights against her unless it is well established that she had wilfully deserted her husband and was not willing to stay with him without reasonable cause or sufficient reasons. Such a view was also taken by a learned single Judge of the Rajasthan High Court in Jhanwarlal v. State of Rajasthan wherein the Division Bench ruling of this Court in case of Fakruddin Shamsuddin v. Bai Jenab (supra) was referred to and relied upon.

7. Again in our case it is crystal clear that the respondent-husband had with an ulterior motive to thwart the maintenance order which was likely to be passed against him by the learned trial Magistrate in Miscellaneous Application No. 204 of 1979 had filed the Civil Suit No. 14 of 1979 in the Court of the learned Civil Judge (Junior Division) at Umbergaon on 17th April 1979 after the wife had made an application for maintenance on 23rd March 1979. This conduct on the part of the husband who subsequently obtained an ex parte decree for restitution of conjugal rights speaks volumes against him so eloquently and his ill intentions that he did not want to pay maintenance to his wife are well exposed. Such instances are known in abundance to the legal world. By this act the husband sufficiently black painted himself.

8. In the premises of what is stated above, it is imperative that the impugned order passed by the learned Additional Sessions Judge, Pune, on 9th March 1984 in Criminal Revision Application No. 103 of 1983 has to be set aside and the one passed by the learned trial Magistrate in Misc. Application No. 204 of 1979 on 28th February 1983 be restored. In the result, I order accordingly. Rule is made absolute.

9. Ordered accordingly.


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