Himachal Pradesh High Court
Sh. Kanhaiya Lal vs Smt. Himachali Devi on 27 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 305 of 2017
.
Date of decision: 27.12.2017
Sh. Kanhaiya Lal ...Petitioner.
Versus
Smt. Himachali Devi ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Devender Sharma, Advocate.
For the Respondent : Mr. H.S. Rangra, Advocate.
Justice Tarlok Singh Chauhan, Judge (Oral)
The petitioner is the husband who aggrieved by the order of enhancement of maintenance allowance in favour of his wife (respondent herein) has filed the instant petition questioning the said order.
2. The relationship between the parties is not denied and one of the points that is strongly urged by learned counsel for the petitioner is that on failure of wife to join the company of the husband in a decree for restitution of conjugal rights, she is not entitled to claim any maintenance much less enhanced amount of maintenance.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 30/12/2017 22:58:42 :::HCHP 23. It would be noticed that the respondent had initially filed petition under Section 125 Cr.P.C. for award of monthly .
maintenance, however, the same was dismissed as compromised. Later on, the respondent again filed petition for maintenance, the same was allowed vide order dated 26.10.2006, whereby she was awarded monthly maintenance at the rate of Rs.400/- per month.
4. Section 127 r Cr.P.C.
The respondent thereafter filed an application under for enhancement of maintenance, however, the same was dismissed by the learned the monthly Trial Magistrate as not maintainable in view of the findings of the Civil Court recorded in judgment dated 27.07.2006 whereby the petition filed by the husband under Section 9 of the Hindu Marriage Act (for short the 'Act') for decree of restitution of conjugal rights has been passed against the wife on a specific issue "whether respondent without reasonable cause has withdrawn herself from the society of the petitioner as alleged"
and it was further observed that these findings had not been disturbed in FAO No. 343 of 2006, titled Smt. Himachali Devi vs. Kanhya Lal, preferred by the respondent before this Court and had been dismissed on 19.04.2012.
5. However, in revision preferred before the Court of learned Sessions Judge, the application filed by the respondent-
::: Downloaded on - 30/12/2017 22:58:42 :::HCHP 3wife came to be allowed and the maintenance amount was enhanced to Rs.3000/- per months by holding that a decree of .
restitution of conjugal rights obtained from a Civil Court did not necessarily put in end to the order of the maintenance previously passed under Section 125 Cr.P.C. It was further held that if the Court finds that the proceedings for restitution of conjugal rights are not brought with a view to take the wife back but to evade the payment of maintenance, in that case the Magistrate or the Court may refuse to act upon the decree or order of the Civil Court.
6. It was also observed that in this case there are reasons to believe that decree of restitution of conjugal rights was not obtained by the respondent in a bonafide manner and out of a genuine need to have the company of his wife restored to him but his main purpose was to get the maintenance order cancelled and it was never his intention to restore the company of his wife that is why he never made any sincere efforts to bring his wife back to his matrimonial house.
7. Placing heavy reliance upon the judgment of Hon'ble Bombay High Court in Paremeshwaribai Nagesh Ganpaya vs. Raghavendra Chidanand Kaikini AIR 1919 Bombay141 and the judgment of Hon'ble Calcutta High Court in Tarak Nath Dhar vs. Sneharani Dhar AIR (36)1949 Calcutta 87, wherein ::: Downloaded on - 30/12/2017 22:58:42 :::HCHP 4 it was held that a decision in a suit against the wife for restitution of conjugal rights was equivalent to a decision by a competent .
Civil Court that the wife had no sufficient reason for refusing to live with her husband and, therefore, the order of maintenance obtained by her had to yield to the order of restitution of conjugal rights obtained by the husband, it was held that the subsequent decree for restitution of conjugal rights is a binding decision to the effect that the wife had no sufficient ground to refuse to live with the husband, therefore, the previous order or maintenance must be cancelled.
8. However, I find that the proposition as canvassed by the learned counsel for the petitioner, in fact, does not rise for consideration in the instant petition. Reason being that while deciding FAO No. 343 of 2006 (supra), this Court vide its order dated 19.04.2012 has clearly observed in the ultimate para of the judgment that "the decision of this appeal does not determine the merits of the case of the parties in proceedings under Section 125 Cr.P.C. where they left to take their individual remedy."
9. Thus, once this court has clearly held that the outcome of the proceedings in case relating to restitution of conjugal rights shall have no effect on the merits of the case of the parties in proceedings under Section 125 Cr.P.C., therefore, it ::: Downloaded on - 30/12/2017 22:58:42 :::HCHP 5 is more than obvious that the question as vehemently canvassed by the learned counsel for the petitioner, does not at all arise for .
consideration.
10. Now, adverting to the quantum of the maintenance amount, the learned Court below has enhanced the maintenance to Rs.3000/- per month, which in the current scenario of inflation and high cost of living cannot be said to be termed to be exorbitant, as the learned Sessions Judge has come to a categoric finding that the petitioner, who now happens to be an ex-serviceman but was serving in Army at the relevant time had a cumulative income of not less than Rs.20,000/- per month.
11. Noticeably, the income so arrived at by the learned Sessions Judge has not even been assailed before this Court.
12. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed.
December 27, 2017 (Tarlok Singh Chauhan)
(Sanjeev) Judge
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