V.H.Bhairavia - (1.)This Criminal Revision Application has been filed by the petitioner (Orig. opponent-husband) challenging the judgment and order dated 29-3-1983 passed by the learned Metropolitan Magistrate, Court No. 3, Ahmedabad below application of the opponent dated 10-8-1983 in Misc. Cri. Application No. 150 of 1983. By that application, the petitioner-opponent took preliminary objection regarding the maintainability of Misc. Cri. Application No. 150 of 1983 filed by the respondent-Wife under Sec. 125 of the Cr. P. Code for getting maintenance from the petitioner on the ground that there is bar of res judicata in view of the order passed by the Civil Court against the respondent- Wife in Civil Suit No. 1173 of 1977 and H.M.P. Suit No. 298 of 1980 wherein it has been held by the Civil Court that the petitioner-Husband has not deserted the respondent-Wife and she was not entitled to the decree of restitution of conjugal rights and suit was dismissed. Said judgment and order of the Civil Court was confirmed by the High Court in appeal being First Appeal No.. 33 of 1979.
(2.)It has been submitted by the learned Counsel appearing on behalf of the petitioner-Husband that the application under Sec. 125 of the Cr. P. Code filed by the respondent-Wife for getting maintenance amount from the petitioner-Husband, is not maintainable in view of the fact that the petitioner has not deserted or neglected to maintain respondent-Wife. In support of this submission, he has relied on the judgment and orders passed by the Civil Courts in H.M.P. Suit No. 298 of 1980 and Civil Suit No. 1173 of 1977 wherein it has been, in terms, held that the petitioner has not deserted and neglected the respondent-Wife and therefore, respondent-Wife was not entitled to the decree for restitution of conjugal rights. He has further submitted that the said findings are confirmed by the High Court. He has further submitted that these are the concurrent findings of the Civil Courts confirmed by the High Court, they are binding on the Criminal Court for the purpose of awarding maintenance on the application for maintenance under Sec. 125 of the Cri. Pro. Code.
(3.)For appreciating the submissions made by the learned Counsel for the petitioner, it would be necessary to refer to the provisions of Sec. 125 of Cr. P. Code. Section 125 of Cri. P. Code reads as under :
"Order for Maintenance of Wives, Children and Parents : (1) If any person having sufficient means neglects or refuses to maintain : (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself. a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct : Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attanis her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possesed of sufficient means. Explanation : For the purposes of this Chapter, (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority. (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. (2) Such allowance shall be payable, from the date of the order, or, if so ordered from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it becomes due : Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. (4) 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. (5) 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."