The question is, whether a wife who stayed in adultery with another person for few years after she obtained an order under Section 125 of Cr.P.C. against her husband, is entitled to continue similar right of maintenance after she stops such living in adultery ? The answer is in affirmative. If a woman after obtaining order of maintenance starts residing with another person in adultery, it is necessary for the husband to approach 4 CriWP 633/10
the Court and get the earlier order cancelled. In this case, this did not occur. Unfortunately for both the parties the live-in partner of respondent No.1, Rajendra died in 2002 and her status as live-in partner of such person came to an end. In other words, she stopped living in adultery with Rajendra. In such situation, if she proves that she is destitute and has no source of income, she is entitled to look to her husband for maintenance. Section 125 of Cr.P.C. does not prohibit such a demand
Bombay High Court
Subhash S/O Ashruba Pote, Age 49 ... vs Occupation Service, R/O. Rahuri, ... on 30 April, 2012
Bench: A.V. Nirgude
2. Rule. Rule made returnable forthwith. By consent of parties, this petition is taken up for final hearing and heard finally.
The factual aspect of this case, in short, can be stated as under :-
3. The petitioner admittedly was legally wedded husband of respondent No.1. Their marriage took place in 1987. They admittedly stayed as husband and wife together till 2 CriWP 633/10
1991, during which time they were blessed with a girl child. In 1991, respondent No.1 and her daughter left the petitioner, and thereafter, an application under Section 125 of Cr.P.C. was moved by them against the petitioner. This application was allowed in 1993. Till 1997, the petitioner was paying maintenance to respondent No.1 and her daughter. In 1997, the petitioner filed divorce-petition against respondent No.1 and in 1998 same was granted exparte. The wife did not pay any attention to this proceeding probably because she was not aware that divorce was granted against her. In 2006, rather belatedly she challenged the decree of divorce by filing writ petition, but in September, 2006, her petition was dismissed mainly due to delay and latches. It is also an admitted fact that since 1997 the petitioner did not pay any maintenance to respondent No.1 and her daughter nor they made any application for execution of the order passed against the petitioner. Rather belatedly in 2006, respondent No.1 made demand of the maintenance as per the earlier order to the petitioner, and the petitioner on 2nd April, 2007, came to the Court with an application seeking cancellation of the earlier order. This time he said and almost proved that some time in 1997-98 respondent No.1 started residing with one Rajendra who was widower having two children from his previous wife. He also tried to prove, but failed to do so that respondent No.1 got married to Rajendra. But, as said above, he could show through evidence that respondent No. 3 CriWP 633/10
1 stayed with Rajendra till 2002 when Rajendra died. The petitioner thus came with a case that since respondent No.1 re-married, he was not liable to pay her maintenance and the order of maintenance passed against him earlier should be cancelled.
4. The learned Magistrate at trial stage recorded extensive evidence of the petitioner, but refused to believe it. He categorically held that despite of assertions of the petitioner and witnesses, the evidence in respect of marriage as well as cohabitation between respondent No.1 and Rajendra are not established at all. The learned judge of the revisional Court however expressed a view that assuming respondent No.1 stayed with Rajendra for few years, the evidence is not sufficient to prove their marriage. He therefore held that assuming that respondent No.1 stayed with Rajendra for few years, since she did not marry him the petitioner is liable to pay her maintenance as per law.
5. The question is, whether a wife who stayed in adultery with another person for few years after she obtained an order under Section 125 of Cr.P.C. against her husband, is entitled to continue similar right of maintenance after she stops such living in adultery ? The answer is in affirmative. If a woman after obtaining order of maintenance starts residing with another person in adultery, it is necessary for the husband to approach 4 CriWP 633/10
the Court and get the earlier order cancelled. In this case, this did not occur. Unfortunately for both the parties the live-in partner of respondent No.1, Rajendra died in 2002 and her status as live-in partner of such person came to an end. In other words, she stopped living in adultery with Rajendra. In such situation, if she proves that she is destitute and has no source of income, she is entitled to look to her husband for maintenance. Section 125 of Cr.P.C. does not prohibit such a demand. The petition therefore fail. It stands dismissed.
( A.V.NIRGUDE, J. )
SRM/30/4/12
No comments:
Post a Comment