IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M M O No. 67 of 2007. Reserved on 25. 7. 2008. Date of Decision: 29.7.2008 _______________________________________________________ Ashok Kumar ….Petitioner Versus Kamla Devi … Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.yes. For the Petitioner : Mr. Ankush Dass Sood, Advocate. For the respondents : Mr. Ramakant Sharma, Advocate Surinder Singh, J. The present petition is not pressed against the minor respondents but the order dated 15.5.2007 passed in Cr. Revision Petition No.45/10/2005 by the learned Additional Sessions Judge, Ghumarwin, affirming the order of Addl. C.J.M. awarding the maintenance to the respondent wife at the rate of Rs.500/- per month from the date of the petition has been challenged on the ground that the respondent-wife has refused to live with the petitioner without any sufficient cause, therefore, she is not entitled to claim any maintenance. This fact was ignored by both the courts below, __________________________________________ Whether the reporters of the local Newspapers are allowed to see the judgment? Yes. - 2 - therefore, the order impugned qua the wife deserves to be set aside. Shri Ankush Dass Sood, Advocate for the petitioner husband has placed reliance on Raghbir Singh vs Krishna Vol. LXXXIV-1982 PLR 768, a judgment of Punjab & Haryana High Court, wherein it is held that the provisions of sub-rule (1) and (4) of Section 125 Cr.P.C cumulatively, would show that even if the court comes to a finding that till the filing of the petition the husband had neglected or refused to maintain her, even then the court would decline to pass an order of maintenance in favour of the wife, if the wife refuses without any sufficient cause to live with him. The learned counsel also cited Deb Narayan Halder versus Anushree Halder (Smt) 2003 (11) SCC 303; wherein the apex court found that the wife had left her matrimonial home without any justifiable ground and her plea that the husband ill-treated her, demanded dowry and leveled allegation that her husband remarked that she was not good looking were found non-existent, therefore, wife was held not entitled to any maintenance. Taking support from the above legal precedents, the learned counsel for the husband-petitioner forcefully argued that though there are concurrent findings of both the courts below against him but the courts below have mis-appreciated the evidence and mis-applied the law, which has resulted into - 3 - the miscarriage of justice. He contended that in fact there was no justifiable ground for the wife to live separately from her husband especially when her allegations are proved to be wrong whereas the petitioner was and is ready and willing to maintain her at her matrimonial place and not while residing at her parental house without any sufficient cause. The learned counsel for the respondent-wife has countered the above arguments that both the courts below have given the findings based upon the evidence on record. The wife was held justified to live separately as the petitioner not only neglected and refused to maintain but made her life miserable by her husband, which necessitated her to take shelter in the house of her parents along with the children. Further, the conduct of the husband is quite hostile as is apparent from the orders of courts that he did not pay even a single penny either to the wife or the children before or even after the orders passed by this court. The learned counsel argued that the facts of the case law cited above is different from the facts and circumstances of this case and both the courts below have held that there is sufficient cause for the respondent-wife to live separately for the detail reasons mentioned in their orders. It is also contended that the petitioner has been able to drag this matter for so many long years, causing unnecessary additional financial strain and stress to his wife, therefore, the petition deserves to be dismissed with costs. - 4 - I have given my thoughtful consideration to the rival contentions and have gone through the record very carefully. In the present case both the courts below have concurrently held that the respondent-wife had to leave the matrimonial house, she being treated with cruelty and violence by her husband, which was sought to be resolved by the intervention of local Panchayat from time to time which yielded no results. The offer made by the husband to his wife to live with him was not bonafide nor he made any sincere efforts to resume marital ties. The learned trial court in its order dated 25.4.2005 in paragraph 15 and 16 observed as under: “15. In such circumstances, when the husband has leveled allegations against the applicant and even undertook before the Panchayat not to level false allegations, it appears that the applicant has sufficient grounds to live separately from the respondent and demand maintenance from him. The applicant has specifically claimed that she was being maltreated by the respondent and she was also thrown out from the house by him. When it is proved that the respondent used to level allegations against the applicant, then it has to be believed that she was also being maltreated by him as stated on oath by the applicant. Therefore, in such circumstances, she cannot be expected to join his company and live with him. The cases filed by the respondent at Una for the restitution of conjugal rights or for the custody of the children may be only to avoid the applicant being granted the maintenance and not with any clear heart. - 5 - 16. After going through the entire evidence as led by the parties, it has to be held that the applicant has reasonable ground for residing separately from the respondent. Therefore, the applicant No.1 and her children i.e. applicants No.2 and 3 are also entitled for maintenance from the respondent.” In his order passed in revision petition filed by the petitioner-husband, the learned Additional Sessions Judge, affirmed the above findings and upheld the maintenance order holding that despite having found the company of his wife, the petitioner-husband did not improve his behaviour and conduct and subjected her to violence and confined her in a room locked from outside, thus she was justified to live separately from him. These findings are borne out from the record. Thus, from the above discussion, it is manifestly clear that his hostility towards his wife is writ large and his offer of maintenance is absolutely not bonafide. She has a sufficient cause to live separately from him. It is also noticed that the petitioner has made every attempt to escape the liability of maintenance. One of such instances is that vide order dated 26.11.2007 passed by this court he was directed to deposit the maintenance amount as ordered by the courts below on or before 28th February, 2008 but he successfully avoided despite repeated adjournments. Although in the present petition he did not assail the order of maintenance of - 6 - the minors even he also did not pay or deposit their part of the maintenance amount which was only at the rate of Rs.300/- per month to each of them, rather he has filed the case for their custody. Thus, in the above circumstances, in my considered opinion, the law cited above is not applicable in this case, therefore, the petitioner cannot take any assistance from it. The petitioner–husband has no case to invoke the inherent jurisdiction of this court, accordingly the petition is dismissed with costs, quantified at Rs. 1000/-. July 29 , 2008 (Surinder Singh),J. (D)