Pandit Dattatraya Kulkarni vs Laxmibai Pandit Kulkarni and Others

S.S. Parkar, J.—This writ petition filed by the husband challenges the concurrent orders passed by the two Courts below granting application for maintenance filed by the respondent No. 1 - wife u/s 125 of Cr. P.C.

The brief facts are that the parties were married on 6.6.1964 and a son by name Sudhir was given birth to by the respondent-wife on 2.7.1965. Subsequently wife left the matrimonial house and started living with her parents and, therefore, the petitioner husband filed a matrimonial petition in the Civil Court for restitution of conjugal rights on 27.2.1969. The said petition was decreed against the wife by the Trial Court on 22nd March, 1972 holding that the respondent-wife had withdrawn from the society of the husband without reasonable cause. Wife then filed an application u/s 125 of Cr. P.C. for maintenance in the Court of Judicial Magistrate, Panhala on 28th March, 1990 on the ground that the husband had contracted marriage with another woman by name Vimal @ Mangal and, therefore, she could not go and stay with the petitioner-husband in compliance with the decree for restitution of conjugal rights.

The Trial Court after considering the evidence on record granted wife maintenance at the rate of Rs. 300/- per month holding that the wife had sufficient cause to stay away from her husband after the latter contracted second marriage. The said order was challenged by the husband by filing Revision Application in the Sessions Court being Revision Application No. 198 of 1994. Wife also filed Revision Application No. 175 of 1994 in the Sessions Court on the ground that the amount of maintenance granted by the Trial Court was inadequate considering the income of the husband. Both the revision applications were heard by the Addl. Sessions Judge, Kolhapur who dismissed both the revision applications by his common judgment arid order dated 18.11.1995. The petitioner-husband has impugned in this writ petition the orders of both the Lower Courts granting maintenance to the wife.

Mr. Hiranandani, learned Advocate appearing on behalf of the petitioner contended that once the Civil Court had held that the wife had no reasonable cause to stay away from the husband, she is not entitled for grant of maintenance as the finding of the Civil Court is binding in the criminal proceedings adopted by the wife u/s 125 of Cr. P.C. He-next submitted that mere production of voter''s list is not sufficient to hold that the husband had married for the second time.

As regards the first submission, there cannot be disputed that the finding of the Civil Court in the petition filed by the husband for restitution of conjugal rights as regards the absence of reasonable ground for the wife to withdraw from the society of the husband would be binding in the criminal proceedings adopted by the wife for maintenance under Criminal Procedure Code. But, in my view, the said finding cannot be binding on the Criminal Court or on the parties for all time to come. If the Court in the criminal proceedings finds that subsequently the husband had taken second wife or was living in adultery with another woman, the wife is entitled to claim separate maintenance from the husband as she is not obliged to resume cohabitation with the husband if he is living with another woman. Both the Courts below have give finding of fact on the basis of oral testimony of wife and her witness and the extracts from the voter''s list that the petitioner-husband had married another woman and was living with her. That finding cannot be interfered with in this writ petition pcirticularly when the same is not shown to be perverse from the evidence on record. The Trial Court has granted maintenance to the wife from the date of the application i. e. from 28th March, 1990, much subsequent to the passing of the decree for restitution of conjugal rights against her on 22nd March, 1972. In my view the defence under Sub-section 4 of Section 125 would not be available to the husband in such situation in a claim for maintenance by the wife. It is the case of the wife that she could not go and stay with her husband in compliance with the decree for restitution of conjugal rights because her husband was living with another woman. In my opinion, when the husband had contracted another marriage the decree of restitution of conjugal rights passed against the wife cannot stand as a bar against her for claiming separate maintenance from her husband.

As regards the second arguments advanced on behalf of the petitioner-husband is concerned, it cannot be forgotten that the proceeding u/s 125 of Cr. P.C. is a summary proceeding and the finding of the two Courts below that the husband was living with another woman by name Vimal @ Mangal on the basis of the oral testimony of wife and her witness supported by the extracts of voter''s list cannot be said to be wrong, On the contrary it is significant to note that in the voter''s list (Exh. 32) admittedly the name of the petitioner-husband is at Serial No. 832 and his second wife''s name Mangal Pandit Kulkarni appears at Serial No. 833 while that of his mother is at Serial No. 834 and all the three are shown to be residing in the same house No. 120. Admittedly the son Sudhir was not at any time residing with respondent No. 1 wife who was initially residing with the petitioner and thereafter was staying separately with his own wife.

On the quantum of maintenance no arguments were advanced. The order as regards the quantum of maintenance also cannot be found fault with as both the Courts have found that the petitioner was getting salary of Rs. 2400/- per month and is having a shop which he runs in the name of his second wife Vimal.

For the aforesaid reasons no interference is called for and the petition is dismissed. Rule is discharged.