Decided on September 28,1979

GHASITU Appellant
DURGA DEVI Respondents


T.U.MEHTA, C.J. - (1.) THE petitioner who is the husband of the respondent has filed this revision application against the order of maintenance passed by the Court of the Judicial Magistrate Kangra at Dharamsala under Section 125 of the Cr.P.C. in case No. 214/76 of his file. The point involved in this revision application is whether the 'explanation' saying that if 'A husband has contracted marriage with another woman, it shall be considered a just ground of wife's refusal to live with him' applies only to Sub -section (3) of Section 125, or covers within its ambit even the original order of maintenance passed under Sub -section (1) of that section.
(2.) SHORT facts of the case are that the petitioner Ghasitu Ram performed his second marriage with respondent Smt. Durga Devi in the year 1939 -40. At that time his previous wife was also living with him. The petitioner and the respondent lived together for some time. The contention of the respondent wife is that she was often maltreated by the petitioner husband and ultimately two years before the institution of these proceedings for maintenance under Section 125, Cr.P.C. she was beaten and driven out. As against this, the contention of the petitioner husband is that since last about 35 years, the respondent wife has deserted him, and has gone away to her parents' place, and has not returned back to him in spite of repeated attempts on his part. Thus the case of the petitioner husband is that he has not neglected or refused to maintain the respondent. The petitioner has also drawn the attention of the Court to the fact that even during the course of the original proceedings, he made an offer to receive her and is still willing to receive her back to his house and to maintain her. The learned Magistrate who has tried this petition, has come to the conclusion that the respondent wife has not been able to prove satisfactorily that she was driven out by the petitioner husband about two years before the institution of the proceedings. He has further recorded his finding that the version of the petitioner husband that the respondent wife left his house since last about 35 years prior to the institution of the proceedings, should be accepted.
(3.) DURING the course of the original proceedings, a contention seems to have been raised that even if it is believed that the respondent wife left the house of the petitioner husband about 35 years before the institution of these proceedings, the said action of the respondent wife to refuse to live with her husband was completely justified in view of the fact that the husband had already contracted marriage with another woman who was living with him. This contention of the wife has found favour with the learned Magistrate and hence this revision application.;

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