C.A.Rahim - (1.) THIS revision is directed against the judgment and order of Ilnd Additional Sessions Judge, Saharanpur, dated 26.2.1985 in Criminal Revision No. 374 of 1984. By that judgment, he allowed the revision after setting aside the judgment of the trial court and allowed the maintenance at the rate of Rs. 300 to Smt. Shanti the present respondent under Section 125, Cr. P.C.
(2.) AN application for maintenance was filed before Munsif Magistrate-I Saharanpur on the ground of cruelty and desertion. Learned Munsif after considering the material on record dismissed the application by judgment and order dated 10.10.84. Sri H. N.Sharma appearing for the revisionist has submitted that the learned Judge did not consider the Explanation to sub-section (3) of Section 125, Cr. P.C. where the provision is laid down into wife's refusal to live with the husband shall be considered to be a just ground only when the husband contracts marriage with another woman or keep some mistress. Learned counsel has submitted that in the instant case, the allegation is that the applicant- husband wanted to remarry. Since no marriage took place, it cannot come within Explanation to that sub-section for which the wife can refuse to live with the husband. In reply, Sri R. K. Jain appearing for the wife-respondent has submitted that since the couple was issueless the respondent suffered mental torture (sic) wanted to desert her and to marry for the second time. The said conduct of the applicant-husband amounts to cruelty which should be considered as sufficient reason to refuse to live with her husband.
(3.) IT is true that in view of the Explanation to sub-section (3), the wife cannot refuse to stay with her husband unless a second marriage is contracted by the husband, but looking to sub-section (4), it appears that the wife is entitled to receive the maintenance allowance if she refuses to live with her husband for sufficient reason. IT is an admitted fact that couple was issueless. Apart from the other allegations mentioned in the application or in the statement of the respondent, if it is considered that the husband wants to marry for the second time for the reason that the wife could not produce any child, should be considered 'sufficient reason' for wife's refusal to stay with him, as it amounts to cruelty, since after 21 years of conjugal life, no wife could like to be deprived of such association due to the second marriage of the husband. The very proposal might seriously affect the mental health of the wife and cause pain and agony in her mind which amount to cruelty and for that reason the wife if refuses the company of her husband would come under the provisions of sub-section (4) of Section 125, Cr. P.C. on the basis of which she is entitled to have maintenance. Sri Sharma has also submitted that the husband wanted to restore the conjugal right by making efforts to live with her. This may be a good defence but it is required to be scrutinised whether the defence is genuine. In that regard, the applicant has not produced any material to show that prior to initiation of the proceedings by the respondent, any endeavour was made to show that his contention was genuine. I do not find any material on the record to come to such conclusion. Accordingly, the said contention fails.;