RANJIT SINGH, J. - (1.) THIS revision is directed against the order passed by Sessions Judge, Narnaul, who while setting aside the order of JMIC Narnaul has allowed the application filed by the divorced wife Smt. Rajbala under Section 125 Cr.PC and granted maintenance to her at the rate of Rs. 1200/- per month.
(2.) THE facts in brief are that Smt. Rajbala filed a petition under Section 125 Cr.PC praying for grant of maintenance of Rs. 2000/- per month as she had no source of income. It was stated by her that the petitioner-husband was having an income of Rs. 10,000/- per month and was not maintaining her. Petitioner- husband filed written statement taking a stand that respondent-wife had intentionally left the petitioner and was staying with some other person and, accordingly, was not entitled to any maintenance. JMIC Narnaul dismissed the application filed by respondent-wife. The said order was impugned before Sessions Judge, Narnaul, who vide his order dated 25.4.2006, set aside the order of JMIC Narnaul and granted maintenance of Rs. 1200/- per month to respondent-wife from the date of application i.e. 31.5.2000. The same has been impugned in this revision petition. The petitioner has mainly challenged the order on the ground that the respondent wife Rajbala is living in adultery and as such in view of the provisions of Section 125(4) Cr.P.C. is not entitled to any maintenance as she is stated to be having an illicit relation with one Ishar Singh. It is admitted case of the parties that petitioner and respondent are divorced. The parties led evidence before the Court in support of their respective pleas. Respondent Rajbala had examined herself as a witness supporting the averments made by her in her application. During her cross- examination, she admitted that she had four children from the husband. She conceded that their daughter was married by petitioner Dalip Singh. She admitted that she knew one Ishwar Singh for the last 10/15 years, who belonged to village Nalapur. While disclosing the ground on which she had got divorced, respondent Rajbala brought out that her husband used to maltreat and beat her under the influence of liquor and forcing her to seek divorce. Applicant wife produced Ishwar Singh (PW1) as a witness in support of her claim. PW1 corroborated the version of Rajbala to the effect that petitioner used to beat her under the influence of liquor and thereafter had turned her out of matrimonial home. Suggestion put to PW1 that he was having good relations with Rajbala and was keeping her as wife was denied. Petitioner, on the other hand, appeared himself in support of his stand and rebutted the entire version brought on record by respondent Rajbala. Besides he also examined Subhash Chaudhary as RW1, his son Sanjay as RW2 and Ramanand as RW4. RW2 Sanjay, son of the petitioner, and wife applicant has deposed that after taking divorce, his mother Rajbala was residing with Ishwar. Not only this, he stated that Ishwar Singh was his friend and used to visit him and thereafter his mother developed illicit relations with Ishwar and left home. As per this witness, his mother after obtaining divorce from his father has been living with Ishwar. JMIC Narnaul having regard to the evidence and mainly relying upon the testimony of Sanjay RW2, who is son of the parties, found that Rajbala respondent was leading an immoral life and held that she was not entitled to maintenance as she had been divorced by her husband due to wrong committed by her. Sessions Judge, Narnaul, however, found that the judgment and decree of the court dissolving the marriage between the parties had not been produced and accordingly there was no cogent and acceptable evidence to reach a conclusion that the wife was in the wrong while taking divorce from the husband. The court further found that in the absence of this decree, the evidence of petitioner Dalip Singh and his son Sanjay was not enough to dub the wife Rajbala to be a fault in seeking divorce. In this background, the judgment relied upon by the petitioner namely Bhagwan Raoji Dale v. Sushma alias Nanda Bhagwan Dale, 2001(1) RCR(Crl.) 340 (Bombay) could not be relied upon. While rejecting the contention raised on behalf of the petitioner that she was living in adultery and hence not entitled to maintenance in view of the provisions of Section 125(4) Cr.PC, the Court held that this provision would not be applicable in case of a divorced wife.
(3.) LEARNED counsel appearing for the petitioner has by referring to the provisions of Section 125(4) Cr.PC has urged that respondent would not be entitled to maintenance in this case as she is living in adultery. During the course of argument, counsel candidly stated that petitioner is ready and willing to maintain respondent in case she is prepared to leave the person with whom she is having adulterous relations. Counsel for respondent, on the other hand, has submitted that Section 125(4) Cr.PC has no applicability in the case of divorced wife and as such respondent Rajbala has been rightly granted maintenance in this case. Number of judgments have been cited by counsels, in support of their respective submissions. The counsel for petitioner has referred to Puliyulla Chalil Narayana Kurup v. Thayyulla Parambath Valsala, 2005(4) R.C.R.(Criminal) 565 (Kerala); Pola Venkateshwarlu v. Pola Lakshmi Devi and others, 2005(1) R.C.R.(Criminal) 1004 (A.P.); Chander Kumar Sharma v. Samriti Sharma, 1998(3) R.C.R(Criminal) 135 (P&H) and Ammasi v. Smt. Amaravathi, 1997(4) R.C.R.(Criminal) 301 (Madras). In Pulivulla Chalil Narayana Kurup's case (supra), Kerala High Court held that if after grant of maintenance, husband could establish that wife is living in adultery or that she has refused to live with him without sufficient reason then the Magistrate could cancel the order of maintenance. This was not a case where the wife had been divorced. There does not appear to be any doubt that provisions of Section 125(4) Cr.PC would clearly apply to a case of wife, who is either living in adultery or without any sufficient reason, has refused to live with her husband or in a case where they are living separately by mutual consent. The question in the present case requiring adjudication is whether the provisions of Section 125(4) Cr.PC would apply to a case of a divorced wife living in adultery etc. or not. In this regard, counsel for petitioner seems to be heavily relying upon the case of Pola Venkateshwarlu (supra). This was a case where wife had been divorced on the ground that she was living in adultery. Under this circumstance, it was held that since the divorce had been granted on the ground of wife living in adultery, wife would not be entitled to receive any maintenance allowance. This factual position is not available on record in this case. It is not clear from the record if the adultery was the ground of divorce in the instant case. This judgment may not strictly be alluded to the facts of the present case. It was then that learned counsel referred to Chander Kumar Sharma's case (supra) to say that divorced wife living in adultery would not be entitled to a maintenance. This was a case where Judicial Magistrate had granted maintenance to a wife which had been challenged in revision. During the pendency of the revision before this Court and having regard to the different view expressed, two questions were referred for opinion to the larger Bench namely:- "(1) Whether the findings recorded by a Civil Court in exercise of its matrimonial jurisdiction, except the one dealing with the legal character or the marital status of the parties to the same, are relevant and admissible for the adjudication of the claim of the wife u/s 125 Cr.P.C.? (2) Whether the defences specified in sub-section (4) of Section 125, Cr.P.C. are available to the husband in a petition filed under this section by the divorcee wife ?" ;