M. M. Punchhi, J. - (1.) This is a petition for revision by Bimla Devi against her husband Sita Ram, against the order of the Sub Divisional Judicial Magistrate, Pathankot dated 1-9-1977 whereby her claim for maintenance under section 125, Criminal Procedure Code, was rejected predominantly on the view taken by this Court in Baldev Raj and others Vs. Pushpa Rani, 1970 Current Law Journal 157 , as there was a subsisting decree for judicial separation against her.
(2.) Broadly stated, the facts were that the petitioner filed an application for maintenance against her husband. The husband-respondent resisted it. Both parties led evidence in support of their case. The husband in addition put forth judgment inter parties. Exhibit R-2, passed by the Subordinate Judge 1st Class, Jagadhri, district Ambala dated 26-4-1974 whereby Sita Ram, the husband, had been granted an ex-parte decree for judicial separation against Bimla Devi, his wife. With the aid of the said decision, a finding was recorded that the husband had been deserted by the wife not on consideration of the oral evidence as to the neglect and refusal, but basically on the existence of the binding judgment, Exhibit R-2. The trial Magistrate concluded that it could not be said that the husband had neglected his wife as stated by her in the petition for maintenance. Support for the view was sought from Baldev Raj's case (supra), a decision under the old Code of Criminal Procedure, 1898.
(3.) Two decisions of this Court, one Baldev Raj's case (supra) rendered by Manmohan Singh Gujral J. and the other Atma Ram Sharma Vs. Manjit Rani alias Ram Murti and another, 1974 Chandigarh Law Reporter 217 , rendered by B.R. Tuli, J. are worthy of notice. In the former case, it was held that if a decree for judicial separation has been passed against the wife, it would imply that the wife has no reasonable ground for not living with her husband and that in such a case, sub-section (4) of section 488 of the old Code of Criminal Procedure would come into operation and the wife would not be entitled to maintenance. Sub-section (4) of section 488 of the old Code of Criminal Procedure provided that no wife shall be entitled to receive an allowance from her husband if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. In Atma Ram Sharma's case (supra), B.R. Tuli, J. while dealing with a claim of the wife for maintenance under section 488, Criminal Procedure Code, took the view that in the presence of a decree for restitution of conjugal rights, passed under section 9 of the Hindu Marriage Act against the wife, who had withdrawn from the society of her husband without reasonable cause, entitling him to the decree, the wife was not entitled to claim maintenance from her husband if she had refused to obey the decree that had been passed against her. In both the aforesaid precedents, the existence of operative decrees of the civil/matrimonial Court were made to influence the judgment of the criminal Court so as to stand in accord with the former.;