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Teja Singh Vs. Smt. Chhoto - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1981CriLJ1467
AppellantTeja Singh
RespondentSmt. Chhoto
Cases Referred and Baldev Raj v. Pushpa Rani
Excerpt:
.....the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 5. the civil court had clearly found that it was she who had deserted her husband that means it was she who had been refusing to live with him......herein (hereafter they are referred to as the husband and wife) under section 125 of the code of criminal procedure, alleging that she had been deserted by him for reasons of bringing insufficient dowry and had been living with her parents almost from the inception of the marriage. the husband in his written statement claimed that she had deserted him on her own when he did not agree to her demand that he should adopt the cult of 'sacha sauda'.2. the trial magistrate allowed maintenance and revision petition of the husband was dismissed by the additional sessions judge, bhatinda. the husband has invoked the inherent jurisdiction of this court for quashing both these orders on the ground that courts below have acted illegally and against the letter of law by not feeling bound by.....
Judgment:
ORDER

D.S. Tewatia, J.

1. Respondent wife sought maintenance from her husband, petitioner herein (hereafter they are referred to as the husband and wife) under Section 125 of the Code of Criminal Procedure, alleging that she had been deserted by him for reasons of bringing insufficient dowry and had been living with her parents almost from the inception of the marriage. The husband in his written statement claimed that she had deserted him on her own when he did not agree to her demand that he should adopt the cult of 'Sacha Sauda'.

2. The trial Magistrate allowed maintenance and Revision Petition of the husband was dismissed by the Additional Sessions Judge, Bhatinda. The husband has invoked the inherent jurisdiction of this Court for quashing both these orders on the ground that Courts below have acted illegally and against the letter of law by not feeling bound by the Civil Court decision between the parties rendered in a petition under Section 9 of the Hindu Marriage Act filed by the wife.

3. The maintenance proceedings were launched by the wife on March 22, 1977. This was after the matrimonial Court had dismissed wife's petition for restitution of congugal rights vide order dated January 19. 1977. The proceedings under Section 9 of the Hindu Marriage Act were initiated by the wife on March 31, 1975. The very ground which was asserted in her petition under Section 9 of the Hindu Marriage Act, was the ground which she later on pleaded in her petition for maintenance. Her application for restitution of conjugal rights was dismissed by the trial Court with the finding that the petitioner had left the matrimonial home of her own accord and it was she who had deserted her husband. This judgment was later on sustained by the High Court with the observation that she herself left her husband and therefore, she could not obtain a decree for restitution of conjugal rights.

4. Sub-section (4) of Section 125 of the Code of Criminal Procedure, which is in the following terms :-

No wife shall be entitled to receive an allowance 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.

envisages that a wife shall not be entitled to receive any allowance from her husband under Section 125 of the Code of Criminal Procedure inter alia if she reluses to live with her husband.

5. The Civil Court had clearly found that it was she who had deserted her husband that means it was she who had been refusing to live with him. Such being the case by virtue of Sub-section (4) of Section 125 of the Code of Criminal Procedure, she would not be entitled to any allowance.

6. The next question that calls for consideration is as to whether finding in a judgment of Civil Court between the parties would be binding upon the Magistrate trying the petition under Section 125 of the Code of Criminal Procedure. In this regard Sub-section (2) of Section 127 of the Code of Criminal Pro- cedure deserves notice and it reads as under:-

Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be vary the same accordingly.

7. A perusal of this sub-section would show that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties happens to be rendered by the Civil Court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the Civil Court order by cancelling the order granting maintenance, if such is the import of the judgment of the Civil Court.

8. In the present case the Civil Court had already held against the wife by pronouncing that she was not entitled to a decree of restitution of conjugal rights, under Section 9 of the Hindu Marriage Act because it was not the husband who had deserted her, it was she who had withdrawn from his society and had deserted him. This finding of the Civil Court was binding upon the Magistrate and in the face of this finding the trial Magistrate could not come to a contrary finding and grant maintenance. In the petition for maintenance, it not being her case that after her petition under Section 9 of the Hindu Marriage Act had been dismissed, she had made efforts to join her husband and her efforts had been thwarted by him.

9. For the view that the decision of the Civil Court between the parties is binding by virtue of the provisions of Sub-section (2) of Section 127 of the Code of Criminal Procedure, Judicial support is not lacking. Ravendra Kaur v. Achant Swarup. 0044/1966 : AIR1966All133 ; Dahyalal Amathalal v. Bai Madhukanta : AIR1965Guj247 and Baldev Raj v. Pushpa Rani are the few of the decisions which buttress the above view.

10. For the reasons aforesaid, the judgment of the trial Magistrate as also of the Additional Sessions Judge are set aside and wife's petition is dismissed.


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