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Neutral Citation No. ( 2024:HHC:5582 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 56 of 2024
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Reserved on: 09.07.2024
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Date of Decision: 22.07.2024.
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Krishan Lal ...Petitioner
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Versus
Champa Devi ...Respondent
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Coram
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Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
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For the Petitioner : Mr. J.R. Poswal, Advocate.
For the Respondent : Mr. R.S. Jaswal, Advocate.
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Rakesh Kainthla, Judge
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The petitioner/husband (respondent before the
learned Trial Court) has filed the present petition against the
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order dated 19.12.2023, passed by learned Additional Chief
Judicial Magistrate, Court No.2, Shimla (learned Trial Court) in
Execution Petition No. 9003223 of 2015. (The parties shall
hereinafter be referred to as per their status for convenience).
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Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present
petition are that learned Judicial Magistrate First Class (JMFC),
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Court No.III, Shimla passed an interim order of maintenance in
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favour of the wife awarding ₹1,000/- per month as maintenance
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from the date of order i.e. 7.1.2009 till the disposal of the
petition. The order was assailed and the revision was dismissed
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by the learned District Judge, (Forests), Shimla vide order dated
13.12.2013. The wife filed an application under Section 128 of
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Cr.P.C. for enforcing the order of maintenance dated 7.1.2009.
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3. The husband filed an objection petition taking
preliminary objections regarding the petitioner having
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concealed material facts from the Court and the petitioner not
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being entitled to maintenance in view of Section 125(4) of Cr.P.C.
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The contents of the petition were denied on merits. It was
asserted that the wife was living in adultery. A divorce petition
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filed by the husband was allowed on the grounds of desertion,
cruelty and adultery. The wife is living in adultery with one
Ghanshyam. Mahila Mandal of Sai Brahmna had also made a
complaint to the Deputy Commissioner. A complaint was also
filed against the wife and the adulterer. Therefore, it was prayed
that the execution petition be dismissed.
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4. A reply was filed to the objection petition asserting
that the wife came to know about the divorce on 5.5.2008 when
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she went home and found that her name was deleted from the
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ration card based on the decree of divorce. The wife filed an
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application to set aside the decree of divorce but could not
pursue it due to the threat to her life. It was specifically denied
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that the wife was living in adultery. Hence, it was prayed that the
objections be dismissed.
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5. A rejoinder denying the contents of the reply and
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affirming those of the objections was filed.
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6. The learned Trial Court held that the interim order of
maintenance was passed despite the decree of divorce. The Court
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is bound to execute the order unless it is varied or vacated.
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Hence, a warrant of attachment of the immovable property of
the husband was ordered to be issued.
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7. Being aggrieved from the order passed by the learned
Trial Court, the husband has filed the present petition asserting
that the order passed by the learned Trial Court is against the
facts and law. It was passed mechanically. The husband had filed
a petition under Section 13 of the Hindu Marriage Act for seeking
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divorce, which was allowed on the ground that the wife was
leading an adulterous life. The grounds taken by the husband
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were not considered. Hence, it was prayed that the present
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petition be allowed and the order passed by the learned Trial
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Court be set aside.
8. The wife filed a reply taking preliminary objections
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regarding lack of maintainability and the husband having not
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approached the Court with clean hands. The contents of the
petition were denied on merits. It was asserted that the Court
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had considered all the objections raised before it. Therefore, it
was prayed that the present petition be dismissed.
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9. I have heard Mr. J.R. Poswal, learned counsel for the
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petitioner-husband and Mr. Ravinder Singh Chandel, learned
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Counsel for the respondent-wife.
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10. Mr. J.R. Poswal, learned counsel for the petitioner-
husband submitted that the wife is living in adultery and is not
entitled to maintenance in view of Section 125(4) of Cr.P.C. He
relied upon the judgments of Yashika Mehndiratta Vs. Amit
Mehndiratta 2013 (201) DTL 491, Bhagwat Pitambar Borse Vs.
Anusayabai Bhagwat Borse 2018 (3) Civil Court Cases 224, and
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Dinesh Kumari and others Vs. Umesh Sharma, Latest HLJ 2009(1)
388 HP and Sukur Ali Vs. State of Assam 2011 (4) SCC 729 in
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support of his submission.
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11. Mr. R.S. Jaswal, learned counsel for the respondent-
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wife submitted that the decree of divorce on the ground of
adultery will not disentitle the wife from claiming maintenance
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from her husband. Section 125(4) applies to the wives who are
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still married to their husbands and does not apply to the wives
who have divorced. Therefore, he prayed that the present
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petition be dismissed.
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12. I have given considerable thought to the submissions
and have gone through the records carefully.
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13. It was laid down by the Hon’ble Supreme Court in
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Rohtash Singh v. Ramendri, (2000) 3 SCC 180 that a wife is not
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entitled to maintenance from her husband if she is living in
adultery, she has refused to live with her husband or they are
living separately by mutual consent. These conditions will apply
when the matrimonial relations subsist and not after the
divorce. It was observed:-
“6. Under this provision, a wife is not entitled to any
maintenance allowance from her husband if she is living
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in adultery if she has refused to live with her husband
without any sufficient reason or if they are living
separately by mutual consent. Thus, all the circumstances
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contemplated by sub-section (4) of Section 125 CrPC
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presuppose the existence of matrimonial relations. The
provision would be applicable where the marriage
between the parties subsists and not where it has come to
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an end. Taking the three circumstances individually, it
will be noticed that the first circumstance on account of
which a wife is not entitled to claim maintenance
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allowance from her husband is that she is living in
adultery. Now, adultery is the sexual intercourse of two
persons, either of whom is married to a third person. This
supposes the subsistence of marriage between the
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husband and wife and if during the subsistence of
marriage, the wife lives in adultery, she cannot claim
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maintenance allowance under Section 125 of the Code of
Criminal Procedure.”
14. This judgment was followed by the Hon’ble Supreme
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Court in Swapan Kumar Banerjee v. State of W.B., (2020) 19 SCC
342, wherein it was held:-
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5. Thereafter, in Rohtash Singh v. Ramendri [Rohtash Singh
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v. Ramendri, (2000) 3 SCC 180: 2000 SCC (Cri) 597] this
Court took a similar view : (SCC p. 184, para 11)
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“11. The learned counsel for the petitioner then
submitted that once a decree for divorce was passed
against the respondent and marital relations
between the petitioner and the respondent came to
an end, the mutual rights, duties and obligations
should also come to an end. He pleaded that in this
situation, the obligation of the petitioner to
maintain a woman with whom all relations came to
an end should also be treated to have come to an
end. This plea, as we have already indicated above,
cannot be accepted as a woman has two distinct
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rights for maintenance. As a wife, she is entitled to
maintenance unless she suffers from any of the
disabilities indicated in Section 125(4). In another
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capacity, namely, as a divorced woman, she is again
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entitled to claim maintenance from the person of
whom she was once the wife. A woman after divorce
becomes destitute. If she cannot maintain herself
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or remains unmarried, the man who was once her
husband continues to be under a statutory duty and
obligation to provide maintenance to her.”
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6. This view, which was taken by a two-Judge Bench has
been confirmed in Manoj Kumar v. Champa Devi [Manoj
Kumar v. Champa Devi, (2018) 12 SCC 748 : (2018) 5 SCC
(Civ) 516 : (2018) 3 SCC (Cri) 694] by a three-Judge Bench,
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though, no specific reasons have been recorded in the
judgment. Mr Debal Banerjee urged that the matter
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requires reconsideration. We are not in agreement with
him for two reasons. Firstly, the view taken in the first
two judgments has been confirmed by a three-judge
Bench and, therefore, we cannot refer it to a larger Bench.
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Even otherwise, this view has been consistently taken by
this Court and the said view is in line with both the letter
and spirit of CrPC.
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15. Hence, in view of the binding precedents of the
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Hon’ble Supreme Court, the plea that a divorced wife is not
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entitled to maintenance if she is living in adultery is not
acceptable.
16. A copy of the decree of divorce shows that it was
granted on 26.2.2007. The interim maintenance was allowed
w.e.f. 7.1.2009. The maintenance was granted after the parties
ceased to be husband and wife and the decree of divorce and the
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findings recorded during the divorce proceedings would not
affect the maintenance claim of the divorced wife. Thus, the
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learned Trial Court had rightly rejected the objection that the
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wife was not entitled to maintenance because she was living an
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adulterous life.
17. The judgment of the Delhi High Court in Yashika
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Mehndiratta (supra) and this Court in Dinesh Kumari (supra)
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related to a situation where the relationship between the parties
was subsisting. In Bhagwat Pitambar Borse (supra), the
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maintenance was awarded w.e.f. 11.8.1992 and the decree of
divorce was granted on 24.4.2006, which was confirmed on
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24.7.2017. The Bombay High Court held that in view of a decree
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having been passed subsequently, the wife cannot be held
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entitled to the maintenance. Since in the present case, the
maintenance was granted after the decree of divorce, therefore,
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this judgment will not assist the husband.
18. The judgment of the Hon’ble Supreme Court in Sukur
Ali (supra) deals with the right of the counsel which is not
relevant in the present case.
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19. In view of the above, there is no infirmity in the order
passed by the learned Trial Court.
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20. Consequently, the present petition fails and the same
is dismissed.
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21. The observation made herein before shall remain
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confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
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Judge
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22nd July, 2024
(Chander)
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