The wife filed an application under Section 125 Cr. P. C. against her husband claiming maintenance in a court at Delhi…. In the proceedings under Section 125 of the Code, the husband pleads that the said ex-parte decree is binding upon the Criminal Court… Decide

Question: The wife filed an application under Section 125 Cr. P. C. against her husband claiming maintenance in a court at Delhi on 24.06.1988. Prior thereto, she had sent a notice also, to him, in April 1988.

The husband filed a petition under Section 9 of the Hindu Marriage Act, 1955 in a court at Varanasi in May 1988 and obtained an ex- parte decree for restitution of conjugal rights against his wife.

In the proceedings under Section 125 of the Code, the husband pleads that the said ex-parte decree is binding upon the Criminal Court, which decree establishes that his wife had refused to live with him without sufficient cause and as such, the wife is not entitled to the grant of any maintenance. Decide. [D.J.S. 1990]

Find the answer to the mains question only on Legal Bites. [The wife filed an application under Section 125 Cr. P. C. against her husband claiming maintenance in a court at Delhi…. In the proceedings under Section 125 of the Code, the husband pleads that the said ex-parte decree is binding upon the Criminal Court… Decide.]

Answer

Section 488 of the Code of Criminal Procedure, 1898 corresponds to Section 125 of the Code, and, in fact, the latter has some features more beneficial to the wives and aged parents. Section 125 of the Criminal Procedure Code provides the wife’s right to maintenance if they are living separately and the wife is not capable of maintaining herself.

Section 125(4) of CrPC states that no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of the proceeding, from her husband under this section-

(1) if she is living in adultery, or

(2) if without any sufficient reason, she refuses to live with her husband, or

(3) if they are living separately by mutual consent.

The issue involved in the present question- What is the effect of a decree for restitution of conjugal rights on the application of a wife for maintenance?

It was observed by Chief Justice Beaumont in Fakruddin Shamsuddin v. Bai Jenab, (AIR 1944 Bom 11): (1944 Cri LJ 271), that the Magistrate should not “surrender his own discretion” simply because the husband was armed with a Civil Court decree for restitution of conjugal rights.

Ramachandra Raju, J. of Andhra Pradesh High Court in Sayed Ghulam Sajjad v. Parveen Fatima, 1981 Cri LJ NOC 2 stated that a mere decree for restitution of conjugal rights in favour of husband itself does not automatically bar the wife from claiming maintenance under Section 125, though the decree cannot be ignored.

The Magistrate has the discretion to decide on the evidence adduced before him by the parties. whether the wife is entitled to maintenance despite the fact that the husband has got a decree for restitution of conjugal rights.

Hence, in view of the above decision, it can be said in the present case that the two proceedings, one under Section 125 and the other under the respective personal law of the spouses operate in a different sphere. The remedy under Section 125 is purely a discretionary one. It is not so, to that extent, under the personal law.

The aim and object of Section 125 and other provisions in Chapter IX of the Code are to help the weaker of the two to obtain the assistance of the court in getting maintenance. Thus, the claim of the wife under Section 125 of CrPC should be decided independently.

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