IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. M. M. O. No. 1 of 2005 Reserved on 12. 3. 2009 Date of decision: 18 . 3. 2009 Balak Ram …..Petitioners Versus Kirna Devi ……Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. Romesh Verma, Advocate. For respondent None. Surinder Singh, J. The petition filed by the respondent-wife under Section 125 of the Code of Criminal Procedure, seeking maintenance from the petitioner-husband was dismissed by the learned trial Magistrate but its dismissal was set aside and reversed in Criminal Revision petition No. 10 of 2004 by the learned Sessions Judge, vide his detailed judgment passed on 27.11.2004. While allowing her petition for maintenance, the learned Sessions Judge awarded an amount of Rs. 1000/- per month w.e.f. 10.9.2003, in her favour, which has been assailed by the petitioner by filing the present petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - During the proceedings in this court, an application being Cr.M.P No. 614/2008 was filed and allowed for placing on record the judgment passed in case No. 1-3 of 2005, on 19.1.2006, by the learned Civil Judge (Sr. Division) exercising the powers of District Judge, for restitution of conjugal rights under Section 9 of the Hindu Marriage, whereby respondent-wife was directed to join the society of the petitioner-husband. It is submitted by Shri Romesh Verma, learned counsel for the petitioner-husband that in view of the judgment for restitution of conjugal rights, referred to above, respondent-wife is not entitled to seek maintenance as she has failed to obey the decree/order and is still residing separately without any reasonable cause. To buttress his arguments, he placed his reliance on the judgment of this Court in Hem Raj versus Urmila Devi and others 1997 (1)S.L.J. 288. The respondent-wife was earlier represented by Sh. K.R. Thakur, Advocate but later, he was permitted to withdraw on his request from the case vide order dated 11.12.2008 passed by this court. Thereafter notice was served upon the respondent for hearing twice. But neither she nor her authorized agent put in appearance. Thus there was no alternative but to hear arguments ex parte. - 3 - To appreciate the points taken by the learned counsel for the petitioner-husband, it is important to note certain facts which necessitated the filing of the present petition by the husband. Admittedly, the parties to the present litigation got married on 9th March, 2000. It is alleged that after about one year, her husband started maltreating her and raised the demand of dowry from her parents. During the subsistence of this marriage, she also gave birth to a female child who died soon after her birth. The cause of her death was attributable to the maltreatment meted out to her. Thereafter in the Month of March, 2002, she was compelled to take shelter in the parental house, since then she had been residing there without any income to maintain herself. Whereas her husband, a Tea-mate is salarised man employed in the State Electricity Board, in Sub Division Amb. The petitioner-husband resisted the petition and denied the allegations of maltreatment and demand of dowry, as alleged. According to him, he was residing with his wife at the place of posting at Aamb, but on 26/27th June, 2002 both of them came to their village Dalan to attend the marriage of his younger brother, which was to take place on 3rd July, 2002. Before the said marriage, the respondent-wife went to her parental house with the assurance to return back - 4 - next day but thereafter she did not join his company. Since then she was residing there without any valid reasons. It was also the case of the petitioner-husband that he had made several efforts to persuade her to join the matrimonial company and also visited her parental house several times along with his maternal uncle Sh. Biru Ram, Bimla Devi, Ishwar Dass, retired DSP and Sh. Shiv Ram on different occasions, which yielded no result. To prove her case, there is only a self serving statement of the respondent-wife on record whereas respondent besides examining himself produced Shiv Ram, Bhagat Ram, and Ishwar Dass as his witnesses to substantiate his case. As PW-1 she admitted having visited village Dalan along with her husband but according to her she was ousted from her matrimonial house by her husband. As already referred to above, the marriage of the brother of the petitioner-husband was to take place on 2nd and 3rd July, 2002 and it was the case of respondent that they visited their village in the last week of June, 2002. Thus from this, it is made out that till June, 2002, respondent-wife remained with her husband contra she alleged in the complaint that she was ousted from the matrimonial house in the month of March, 2002, which allegation stands falsified. - 5 - Further on the same contention, respondent had also filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in the Court of Civil Judge (Sr. Division), Hamirpur exercising the powers of District Judge under the Hindu Marriage Act which was resisted and contested by the respondent-wife. She admitted the visits made by her husband along with Biru Ram, Bimla Devi, Ishwar Dass retired DSP and Sh. Shiv Ram but took the plea that all of them had come to her parental house to seek divorce from her. She also took the stand that due to alleged maltreatment and the persistent demand of dowry, she was compelled to leave the company of her husband. She contested the said petition. Both the parties led their evidence and on appreciation of evidence on record, learned Civil Judge held that the petitioner herein had been making sincere efforts to persuade the respondent-wife to join his company thus, while allowing his petition, the respondent-wife was directed to join the society of the petitioner- husband. In Hem Raj versus Urmila Devi and others 1997 (1)S.L.J. 288, it was held by the Single Judge (the then Hon’ble Chief Justice of this Court) that effect of decree for conjugal rights in favour of husband is that the wife had no just and reasonable cause to withdraw from the society - 6 - of her husband and, as such, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure. Therefore, in the present case as well as in view of the decree for restitution of conjugal rights having passed against the respondent-wife, she is not held entitled for the claim of maintenance under Section 125 of the Code of Criminal Procedure. For the above reasons, the present petition is allowed and the impugned judgment passed by the learned Sessions Judge, whereby he reversed the order of dismissal of the petition under Section 125 of the Code of Criminal Procedure, filed by the respondent, is set aside and the order of the learned trial Magistrate dated 13.6.2004, passed in case No. 120-4 of 2003 is hereby restored. The amount, if any, deposited by the petitioner-husband, pursuant to the orders of the learned Sessions Judge, shall be refunded to the petitioner forthwith. The petition stands disposed of. Send down the records. March 18, 2009 (Surinder Singh),J. (cm)