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Judgment
A.P. Bhangale, J.—The short question involved in the present case is, whether a wife having flouted decree for restitution of conjugal rights for no justifiable reason, is entitled to claim maintenance ?
Marriage between applicant and Respondent No. 1 took place on 19.6.2000. Out of wedlock, the couple is begotten with son. Since Respondent No. 1 wife left the matrimonial home for her parental house for no justifiable reason and she was not joining back though repeated calls were given by the applicant husband, applicant was constrained to file a petition for restitution of conjugal rights (Civil Suit No. 150A/03) before the Court at Chindwara. The Additional District Judge, Chindwara was pleased to grant decree for restitution of conjugal rights vide judgment and order dated 1.9.2005. According to the applicant, in spite of the said decree and repeated calls from him, Respondent No. 1 failed to join his company as his wife. On the contrary, she filed Misc. Criminal Application No. 36 of 2004 before the Judicial Magistrate, First Class, Narkhed for grant of maintenance u/s 125 Code of Criminal Procedure for herself and for son Himanshu. Learned Magistrate vide judgment and order dated 9th January 2008 rejected the application of Respondent No. 1 for grant of maintenance on the ground that she failed to join the company of applicant husband despite decree from the competent court and repeated calls from the husband as also for no justifiable reason. Order of the Magistrate granting maintenance allowance to son Himanshu is accepted by the applicant husband.
In revision (Criminal Revision No. 218 of 2008) the Additional Sessions Judge upset the order of learned Magistrate vide judgment and order dated 20.2.2009 and by allowing the application of Respondent No. 1wife, present applicant husband is directed to pay maintenance allowance of Rs. 1000/per month to her. It is this order which is sought to be challenged via the present application.
It appears from the docket that three advocates viz. Mr A.Y. Kapgate, Mr L.B. Shende and Mr S.M. Nafde have filed power for Respondent No. 1wife, but none of them is present before me today. I have heard learned Counsel for the applicant husband at length and perused the record.
It is true that the rule that in the presence of decree for restitution of conjugal rights against the wife she has no right to claim maintenance, has a qualification and that the wife can still claim maintenance in the presence of such decree if the conduct of the husband is such which obstructs her to obey the decree for restitution of conjugal rights. However, in the present case, it appears from the record that Respondent No. 1wife was right from the beginning of matrimonial tie with the applicant was on and off leaving the matrimonial home for her parental home. She did not honour the decree for restitution of conjugal rights. There is nothing borne out from record that Respondent No. 1 made every effort to get back to the matrimony, but applicant husband did not allow her to be in his company. There is no material on record to come to a conclusion that present applicant husband obtained the decree for restitution of conjugal rights just to avoid payment of maintenance allowance to the wife.
Now, dealing with the question involved in the present case, the issue is no more reintegrate. In Sayyed Jabbar Ali Vs. Saheba Fatima, , this Court has, on the basis of judgment of the Punjab and Haryana High Court and two judgments of the Bombay High Court itself, answered the issue in the negative. Relevant observations of this Court in Sayyad Jabbar Ali�s case in paragraphs 6,7 and 8 are as under:
In spite of a decree for conjugal rights, the original applicant without justifiable reason did not join him and on account of this fact, the applicant cannot claim maintenance. It was pointed out by the Punjab and Haryana High Court in Sampuran Singh Vs. Gurdev Kaur and Another, that the rule that in the presence of decree for restitution of conjugal rights against the wife, she has no right to claim maintenance has a qualification and that the wife can still claim maintenance in the presence of decree for restitution of conjugal rights against her, if the conduct of the husband is such which obstructs her to obey such a decree and the presence of another women in his house or another wife can be a valid ground for her to remain away from him.
In Dattatrey Giri Vs. The State of Maharashtra and another, , this Court has held that where wife has no justification for withdrawal from the company of her husband, grant of maintenance is liable to be set aside.
In Mangula Arvind Chavan v. Arvind Shantaram Chavan and Anr. 1994 (1) Mh. L.R. 617, the husband has sought restitution of conjugal rights, but the wife resisted the demand putting certain conditions. The Civil Court had found that the contention of wife regarding ill treatment to her was baseless. Restitution of conjugal rights had been ordered in favour of the husband. The wife did not join her husband. It was held that if the wife did not want to cohabit with her husband despite her failure to prove her case for alleged ill5 treatment, it could hardly be said that the wife was wrongly neglected and denied separate maintenance allowance by the husband.
In the light of the evidence on record, the view taken by the learned Additional Sessions Judge cannot be sustained. In fact, as rightly pointed out by learned Counsel for the applicant, learned Additional Sessions Judge has transgressed the parameters of revisional jurisdiction and had set aside the findings of the trial Court which were based on material on record and the said findings can by no stretch of imagination be said to be perverse.
In the result, application is allowed. Order impugned is set aside and the order passed by learned Magistrate, referred to above, is restored. Payment, if any made by the applicant husband on account of maintenance to Respondent No. 1 wife during the interregnum shall be adjusted towards maintenance payable to the child. No order as to costs.