Allahabad High Court
Vishwanath Chakrawarti vs Anjali Chakrawarti And Anr. on 5 March, 1991
Equivalent citations: II(1991)DMC598
JUDGMENT Girdhar Malaviya, J.
1. This application under Section 482, Cr.P.C. has been preferred against the order dated 17.121981 passed by the 8th Addl. District Judge Allahabad in Criminal Revision No. 463 of 1981 whereby he upheld the order dated 22.6.1981 passed by the Chief Judicial Magistrate Allahabad on the application by the applicant for cancelling the order by which the applicant was directed to pay Rs. 100/- per month to his wife and Rs. 75/- to his daughter per month by way of maintenance under Section 125, Cr.P.C.
2. The crux of the matter is that applicant was married to Smt. Anjali Chakrawarti, the Opp-party on 17.1.1975. On 25.3.1976, an application under Section 125, Cr.P.C. was moved by the Opp-party Smt. Anjali Chakrawarti which was allowed, as indicated above, by the Magistrate on 28.2.1977. Without adverting to the other details in respect of the proceedings it will be enough to mention that this order dated 28.2.77 granting maintenance to Smt. Anjali Chakrawarti and her daughter was confirmed by the High Court in Criminal Revision No. 21 of 1978 passed on 4.1.1989, However, in between, on 27.8.1979, the petitioner had filed a matrimonial petition No. 162 of 1979 for divorce. This petition was decreed ex-parte on 10.1.1980 by the I Addl. District Judge, Allahabad. After the divorce had been granted ex-parte to the applicant, he on 15.12 1980 had moved the application alongwith an affidavit for the cancellation of the maintenance award. As according to him, he had also sought a relief in his divorce-petition for the restitution of conjugal rights. It was pleaded by the applicant that as the decree for the divorce, in which the restitution of conjugal rights had also been claimed as a relief, had been passed and had become final, it should now be held that despite a decree for the restitution of conjugal rights, the Opp-party without any sufficient cause was refusing to live with the applicant. Consequently, the application under Section 127, Cr.P.C. was sought to be allowed, as if the wife refused to live with her husband without any sufficient cause, then according to the applicant, she was no-longer entitled to maintenance. Her application having been dismissed by the Chief Judicial Magistrate and the revision against the order preferred by the applicant having been also dismissed by the 8th Addl. District Judge, Allahabad, this application under Section 482 Cr.P.C. was filed which was admitted oh 1.3.1982 and a conditional stay order was granted whereby the recovery of the maintenance had been stayed on the applicant depositing the entire amount of maintenance as granted by the Magistrate upto 31.1.1982 and on the applicant thereafter depositing a sum of Rs. 100/- only per month until further order of this Court.
3. I have heard learned Counsels for the applicant as also for the Opp-party. At the outset, an objection has been raised by learned Counsel for the Opp-party that in view of the Full Bench Judgment in the case of N.K. Rawal v. Nidhi Prakash reported in 1989 A.L.J. 732 an application under Section 482, Cr.P.C. is not maintainable after the revision for the same party had been dismissed by the revisional Court. Learned Counsel for the petitioner does not dispute this proposition but argued this case to say that if there may otherwise be merit in his contention, then he may be permitted to convert this application filed under Section 482, Cr.P.C. Into a petition under Article 226 of the Constitution.
4. Coming to the merits of the case, it may be stated that the learned 8th Addl. Sessions Judge, Allahabad in para 6 of the judgment has held as follows :
"A certified copy of the judgment of the I Addl. District Judge, Allahabad dated 10.1.1980 is on the file of the learned trial Court. It no where shows that the petition was for restitution of conjugal rights. In the judgment it is clearly mentioned that the petition for divorce was 'on the ground of desertion and cruality. The petition was decreed ex-parte and it can not in any way mitigate the liability of the revisionist to pay the maintenance allowance awarded by the learned trial Court."
5. Learned Counsel for the applicant has not disputed the correctness of this observation, as he possibly can not do, since the said judgment had been annexed as annexure-2 to the application which bears out the facts mentioned above; but his contention is that in his petition for divorce, which is annexure-1 to the present application under Section 482, Cr.P.C., he had clearly sought the relief of restitution of conjugal rights also vide para 12(a). His contention is that as the suit was not contested by Smt. Anjali Chakrawarti, nor was the ex-parte decree got set aside by her, it should be presumed that she has consented to the relief for the restitution of conjugal rights as claimed by applicant in his plaint. It is consequently urged that having impliedly consented to live with the applicant, by her not filing any written statement it should now be presumed that there is no sufficient cause available to Smt. Anjali Chakrawarti to refuse company of the applicant and hence the maintenance awarded to her, has to be quashed.
6. It is difficult to accept even this proposition. Normally any person against whom an ex-parte decree is passed can go to the Court and get the decree set aside by showing adequate cause as to why that party could not contest the proceedings. However, in the instant case the decree passed by the Court concerned was a decree for divorce. As even a divorced wife is entitled to maintenance, the possibility can not be ruled out that on coming to know about the existence of an ex-parte decree for divorce against her, Smt. Anjali Chakrawarti did not deem it necessary to move the same set aside, as even after the divorce, she was entitled to claim maintenance till one got married again It was on this ground that the Court below had refused to grant the relief to the applicant on his application under Section 127, Cr.P.C. Consequently, even otherwise, there is no merit in this contention of the applicant.
7. Learned Counsel for the applicant Sri Yatindra Singh has also placed reliance on the 40th Report of the Law Commission of India which was considering the question of amending Section 488 of the Criminal Procedure Code of 1990, wherein it had been recommended that even if the divorced wife was granted maintenance, there should be a provision which should read as follows :
"On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband ........ or that they are living separately by mutual consent, the Magistrate shall cancel the order."
Emphasising on the underlined portion, learned Counsel contended that the intention of the Law Commission was that if and when a wife had herself agreed to live separately, she was not entitled to any maintenance.
8. Whatever might have been the intention of the Law Commission. since there is no such provision under the amended provisions of Section 125/127 Cr.P.C. it is not possible to refuse maintenance to a woman if she is living separately from her husband, even if it may be the case of a presumed consent.
9. Under the circumstances, there is absolutely no ground on which the orders of the Courts below could be interfered with even if this application was to be converted into a writ petition under Article 226 of the Constitution of India.
10. I may add, that Sri Yatindra Singh learned Counsel for the applicant had mentioned that if I found merit in his contention, then only this petition may again be listed for hearing and he may be granted an opportunity to convert this application into a writ petition, failing which the judgment itself may be pronounced on this application on merit. As I find no merit in the contention of Sri Yatindra Singh, consequently the judgment is being delivered which had been reserved after an argument in the present case.
11. This application under Section 482 Cr.P.C. is dismissed. The stay order passed oh 1.3.1982 to the effect that the applicant had only to pay Rs. 100/- per month w.e.f. 1.2.1982 and not Rs. 175/- per month towards the maintenance of his wife and daughter, is hereby vacated.