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Judgment
S.R. Singharavelu, J.—This criminal revision petition arises against the order dated 22.09.2003 made in Cr.R.P. No. 2 of 2003 by the
learned Principal District and Sessions Judge, Vellore, granting maintenance at the rate of Rs. 1000/- and Rs. 500/- per month to the respondents
1 and 2 respectively, which was rejected by the order dated 16.12.2002 in M.C. No. 2 of 2002.
That was a petition preferred by the wife and minor daughter for their maintenance in M.C. No. 2 of 2002, which was dismissed on 16.12.2002
by the learned Judicial Magistrate No. IV, Thirupattur, Vellore District.
That order was passed on the footing that despite there was an order of restitution of conjugal rights against the wife passed on 05.12.2002 by
the learned Subordinate Judge, Cuddalore, in H.M.O.P. No. 22 of 2002, the wife has not resumed the matrimonial home.
The petitioner before us is the husband. He is aggrieved over the order dated 22.09.2003 of the learned Principal Sessions Judge, Vellore in
reversing the order of learned Judicial Magistrate No. IV, Thirupattur.
After having gone through the records and the orders of the courts below, I find that the order of the learned Principal Sessions Judge, Vellore is
to be upheld and that maintenance is to be awarded in favour of the wife and minor daughter. The reason for the same is that refusal of
maintenance was made by learned Judicial Magistrate No. IV, Thirupattur only on the ground that the wife did not comply with the order of
restitution of conjugal rights passed against her. True it is that it was a binding order to be effectuated by either party. But if there is intervening
circumstance subsequent to the passing of that order making the wife not able to join in the matrimonial home, then the mere fact that there was an
order of restitution of conjugal rights could not be an impediment for passing maintenance.
That intervening circumstance in this case is the admission made on the part of the husband during the proceedings of the maintenance that he
had assaulted the wife. Even though the husband maintained in the proceedings upon his application of conjugal rights as if he never assaulted the
wife, it is later on during the course of the proceedings of the maintenance, the husband admitted such of his assault made upon the wife. That was
rightly grounded for award of maintenance by the lower appellate court. Not only that, there was an admission on the part of the husband culled
out by the lower appellate court in para 7 of its judgment, but also there was a direction by the husband himself throwing the wife and her parents
and the minor daughter out of the matrimonial home, which reads as follows:
R.W.1 in his evidence has stated that on 15.09.2001 when the second petitioner dashed against a chair, since she is one year old, she made
weeping. At that time the revision petitioner entered into the room, the respondent was in that time but he has not taken care of the child for
consolation. Immediately the first revision petitioner asked the revision petitioner why he is not taking care of the child to console her. At that time
the respondent assaulted the first revision petitioner with remote. So she sustained injuries in the presence of her parents. So wordy altercation
taken place between the respondent and the first revision petitioner and her parents. He directed the first revision petitioner and her parents to be
away from the home immediately. They gone to the house owner''s house, stayed there, since the occurrence taken place during night time, very
next day they left the home.
That fact may be a trivial one so as to order restitution of conjugal rights, but in so far as it was instrumental for making the wife and minor
daughter to leave the matrimonial home and that such act of their leaving home was only at the instance of the husband, the latter has to pay
maintenance.
Mrs. Hema Sampath, learned Counsel appearing for the husband relied upon the decision Smt. Geeta Kumari Vs. Shiva Charan Das, , wherein
it was held that in a decision against the wife for restitution of conjugal rights was equivalent to a decision by a competent Civil Court that the wife
had no sufficient reason for refusing to live with her husband and the Criminal Court cannot enquire into any allegations of failure or neglect to
maintain prior to such decision.
The above finding was based upon on an earlier decision in Jiwan Singh Vs. Subedar and Another, , wherein it was observed that in a
subsequent case for maintenance, the Criminal Court may not enquire into allegations of failure or neglect to maintain prior to the decree of
restitution of conjugal rights. It was further observed as follows:
If the wife chooses for purposes of some advantage to herself not to live with her husband, she cannot say that it is the husband who has neglected
her or refused to maintain her.
Therefore, it is a specific circumstance, wherein maintenance was denied subsequent to a decree of restitution of conjugal rights and that denial was
on the ground that wife had chosen for purposes of some advantage to her not to live with her husband. That is not the fact before us.
Similar view was taken in M. Kaliya Perumal Vs. Lakshmi and Rogini, represented by Guardian and Mother Lakshmi, . In that case, wife
remained ex parte and restitution of conjugal rights was obtained by the husband; decree not executed but it was in force; subsequently, wife filed a
suit for maintenance; suit decreed; the appeal was dismissed; the Second Appeal to the High Court was partly allowed and it was held that when
there is a decree by the competent Court for restitution of conjugal rights, the wife cannot claim maintenance. Focus was made in that case as to
the validity of the ex parte decree of restitution of conjugal rights. It was held in the circumstance that even though a decree was passed ex parte
and even though it was not executed, it is still in force and therefore, when restitution of conjugal rights was ordered and when there was no
sufficient reason for the wife to set aside the said ex parte order, there could be no right for her to claim maintenance. What is meant is that pending
application preferred by the wife to set aside the order of restitution of conjugal rights, she will be entitled to claim maintenance until it is dismissed.
What is really meant is that if there are sufficient reasons shown at any stage in order to set aside the earlier order of restitution of conjugal rights
and especially, basing upon certain admission made by the husband, then the mere decree of restitution may not estop the valid claim of
maintenance otherwise established.
But here is a case, where we cannot simply rule out that because of the earlier decree of restitution of conjugal rights, the wife is estopped from
claiming maintenance provided she has otherwise got sufficient grounds to set forth her claim of maintenance.
In other words, if the wife is unsuccessful in establishing in a case for restitution of conjugal rights about the assault made upon her and the fact
of being knocked away from the matrimonial home, that does not mean that she is estopped from claiming maintenance subsequently based upon
the admission made by the husband in the subsequent proceedings of the maintenance about the earlier assault.
To put it otherwise, the subsequent admission of the fact of assault by the husband during the course of maintenance proceedings may be a
better ground for awarding maintenance, even though there was a decree for restitution of conjugal rights upon his own plea of ignorance and
especially when the wife could not prove the assault upon her. When factual matrix makes a basis for maintenance, earlier decree of restitution of
conjugal rights may not technically estop her; otherwise it will lead to miscarriage of justice.
For the aforesaid reasons, this criminal original petition is dismissed and the order of the lower appellate court is confirmed. No costs.
Consequently, connected Crl.M.P.is closed. Due to the peculiar facts and circumstances of the case, there is no general proposition laid in this
case and whatever said may apply to the present facts of the case.