IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 100 of 2003 Tayyab S/o Sabbir Ahmad R/o Village Sidhru, Pargana and Tehsil Laksar Police Station Laksar, District Haridwar. ...…………. Revisionist Versus 1. Principal Judge, Family Court, Haridwar. 2. Smt. Munna @ Munazra W/o Tayyab D/o Shri Salim Ahmad R/o Village Khanjarpur, Pragana & Tehsil Roorkee, P.S. Kotwali Roorkee, District Haridwar. ...…………. Respondents Mr. Rajendra Singh, Advocate for the revisionist. None present for respondent No. 2 even after service of notice. Hon’ble Prafulla C. Pant, J. This revision is directed against the order dated 30.06.2003, passed by Judge, Family Court, Haridwar, in Case No. 120 of 2002, whereby said court has directed the revisionist to pay maintenance at the rate of Rs. 500/- per month to his wife (respondent No. 2). 2) Heard learned counsel for the revisionist. No one turned up on behalf of respondent No. 2. 2 3) Brief facts of the case are that revisionist got married to respondent No. 2 in the year 1996, according to Muslim rites. After their marriage for some time they lived together. Thereafter, their relations started souring. Respondent No. 2 Munni @ Munazra filed an application under Section 125 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), before the Judge, Family Court, Haridwar, claiming maintenance at the rate of Rs. 500/- per month. She pleaded that she was harassed for non-fulfillment of demand of dowry by her husband and in-laws. She further pleaded that she is unable to maintain herself, while her husband is earning Rs. 15,000/- per month. The revisionist, who was opposite party in the case filed by his wife, contested the case and filed his written statement. He admitted that he got married to respondent No. 2. However, he denied that any demand of dowry was made from his wife or she was harassed for non-fulfillment of any such demand. It is also pleaded by respondent (present revisionist) before the trial court that the revisionist is ready to keep his wife with him. He also pleaded that since the respondent No. 2 herself left the house of the revisionist, he filed a Suit No. 26 of 2000, before the Civil Judge (Junior Division), Roorkee, for restitution of conjugal rights. It is pleaded on behalf of the revisionist that that case was contested by his wife and after recording evidence and hearing the parties, the suit for restitution of conjugal rights was decreed by the trial court [Civil Judge (junior Division), 3 Roorkee] vide his judgment and decree dated 26.05.2001, passed on aforesaid Suit No. 26 of 2000. Lastly, it is pleaded by the revisionist that the respondent No. 2 did not honour the decree passed by the trial court, as such, she is not entitled to any maintenance. 4) However, the trial court after recording the evidence and hearing the parties, allowed the application under Section 125 of Cr.P.C., directing the revisionist to pay Rs. 500/- per month to the respondent No. 2, vide its order dated 30th of June 2003, passed in Case No. 120 of 2002. Hence, this revision. 5) Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973, reads as under: “(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” 6) Referring to aforesaid provision, learned counsel for the revisionist pointed out that judgment and decree dated 26.05.2001, passed by Civil Judge (Junior 4 Division) Roorkee, in Suit No. 26 of 2000, whereby decree for restitution of conjugal rights was passed against the respondent No. 2 Munazra, since not complied with by her, as she did not join company of her husband (revisionist), as such, the trial court (Judge, Family Court, Haridwar) has committed grave error of law in not holding that the respondent No. 2 lived without sufficient reason separately from her husband, and as such, she was not entitled to maintenance under Section 125 of Cr.P.C. On perusal of the impugned order dated 30th of June 2003, passed by Judge, Family Court, Haridwar, this Court finds that though said court has observed that decree for restitution of conjugal rights was passed, but since the appeal was pending against said order, as such, that had not attained finality, as such, on its basis the wife cannot be denied maintenance. Learned counsel for the revisionist submitted before this Court that even that appeal No. 48 of 2001, filed by respondent No. 2, has now been dismissed, and the finding of the trial court (Judge, Family Court, Haridwar), is erroneous in law. 7) Having gone through the papers on record and after considering the submissions of learned counsel for the revisionist, this Court does find that the finding recorded in the case for restitution of conjugal rights that wife had deserted her husband without any sufficient cause, has attained finality, and she cannot get maintenance under Section 125 of Cr.P.C., in view 5 of sub-section (4) of said Section, for the want of compliance of decree passed by the civil court. 8) For the reasons as discussed above, the impugned order dated 30th of June 2003, passed by judge, Family Court, Haridwar, in Case No. 120 of 2002, is erroneous in law, and liable to be set aside. Accordingly, the revision is allowed. The aforesaid impugned order is hereby set aside. (Prafulla C. Pant, J.) Dt. March 26, 2010. H. Negi 6