Maghar Singh vs Harjinder Kaur and Others

Hemant Gupta, J.—The challenge in the present appeal is to the judgment and decree passed by the courts below granting maintenance to the respondent wife and to the minor son.

The marriage of the appellant with plaintiff-respondent No. 1 herein was solemnised on 11.12.1988 at village Burj, Tehsil Malerkotla, District Sangrur. On 29.12.1993, one male child was born out of the said wed-lock. As per the case set up by the plaintiff she was thrown out of the matrimonial home with the minor son in September, 1994 after she was beaten up. Thereafter, husband has not taken care of the plaintiff, therefore, she sought maintenance by filing the present suit, for herself and for her minor son. Both the courts below have found that plaintiff No. 1 was compelled to leave the matrimonial home and the plaintiffs are entitled to maintenance. The defendant-appellant had not dared to step into the witness box to deny even the fact of refusal to maintain the plaintiffs.

In second appeal, learned Counsel for the appellant has relied upon the judgment and decree dated 1.8.1997 in proceedings u/s 9 of the Hindu Marriage Act, 1955. Vide the said decree, wife was directed to resume cohabitation with the appellant. The appellant has also relied upon an order passed in proceedings u/s 125 of the Code of Criminal Procedure, 1973 wherein it has been held that the wife has failed to cohabitate with the appellant. In view of the said orders it is sought to be contended that the plaintiff is not entitled to any maintenance from the appellant.

However, I am unable to accept any of the arguments raised by the learned Counsel for the appellant. The proceedings for the grant of maintenance u/s 125 of the Code of Criminal Procedure are summary proceedings enacted with a view to provide immediate help to the aggrieved person. Any decision in such proceedings is not relevant to determine the right of maintenance. It has been held by Hon''ble Supreme Court in Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, that since the proceedings u/s 125 of the Code of Criminal Procedure are of summary nature, either of the parties aggrieved by the order of maintenance u/s 125 of the Code of Criminal Procedure can approach the Civil Court for declaration of status as the order passed in the proceedings u/s 125 of the CPC does not finally determine the rights of the application of the parties. In view of the said judgment the dismissal of petition u/s 125 of the Code of Criminal Procedure does not bar the right of the plaintiff to claim maintenance from the Civil Court.

Similarly, the judgment and decree in the proceedings u/s 9 of the Hindu Marriage Act, 1955 shows that it is an ex parte judgment and decree wherein the wife has been directed to resume cohabitation. Still further, the said petition has been filed after the filing of the suit for maintenance. It has been rightly found that the proceedings u/s 9 of the Hindu Marriage Act, 1955 were merely a counter blast to the present proceedings for maintenance. Still further, the husband has not appeared as a witness even to rebut the allegation of maltreatment to the wife and to the minor son.

In view of above, I do not find any substantial question of law arises in this appeal.

Dismissed.