Criminal Revision (F) No.

467 of 2017 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

Criminal Revision (F) No. 467 of 2017 (O&M)

Date of decision: 28.2.2020

Smt. Khushi @ Samiksha

...Petitioner
Versus
Shri Ankit
...Respondent

CORAM:- HON'BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Lekh Raj Sharma, Advocate,

for the petitioner.

Respondent in person.

JAISHREE THAKUR, J.

1. This is a revision that has been filed seeking to challenge the

order dated 8.9.2017 passed by the District Judge, Family Court, Gurugram,

where by the petition filed by the petitioner for grant of maintenance under

Section 125 of the Code of Criminal Procedure has been dismissed.

2. In brief, the facts that are a marriage was solemnized between

the petitioner and the respondent on 6.12.2012 according to Hindu rites and

ceremonies at Gurgaon. However, soon after the marriage on account of

matrimonial discord, they separated and the petitioner filed a petition under

Section 125 of the Code of Criminal Procedure for grant of maintenance at

the rate of `30,000/- per month on the ground that she is a house wife and

has no source of income to maintain herself, while the respondent herein is

working in a multinational company at Delhi and is earning `60,000/- per

month.

3. The petition was contested by the respondent herein by filing

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 Criminal Revision (F) No. 467 of 2017 2

written statement, wherein it was alleged that the petitioner earlier also had

filed a similar petition under Section 125 of the Code of Criminal Procedure

in Delhi Court, which was disposed of by the Principal Judge, Family Court

by order dated 27.5.2014 after making certain adverse observations against

the petitioner regarding willful and deliberate concealment on her part. It

was also pleaded that the respondent had filed a petition under Section 9 of

the Hindu Marriage Act for restitution of conjugal rights but the petitioner

did not join his company and left the respondent without any just and

reasonable cause, and therefore, the petitioner is not entitled to any

maintenance.

4. In order to establish her claim, the petitioner herself stepped

into the witness box as PW1 and by way of affidavit Ex. PW1/A reiterated

the averments made in the petition. No documentary evidence was led by the

petitioner. On the other hand, the mother of the respondent, namely Alka

Mathur, stepped into the witness box as RW1 and by way of affidavit Ex.

RW1/A reiterated the averments made in the written statement.

5. The Family court, after appreciating the evidence brought on

record by the respective parties, observed that the petitioner has not come to

the court with clean hand regarding her own earnings. In the cross-

examination, she has very candidly admitted that she has a saving bank

account in Canara Bank, Rajendera Park, Gurgaon and is also having a PAN

card. However, she patently refused to divulge the details of her bank

account, which clearly proved that she has an income and if she discloses

the same, then she would not be entitled to claim maintenance from the

respondent. It was further observed that even the criminal case filed by the
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 Criminal Revision (F) No. 467 of 2017 3

petitioner under Section 498-A IPC against the respondent has culminated

into acquittal. While acquitting the respondent, the trial court observed that

the petitioner herein is habitual of making improvements in her version at

each and every step and consequently dismissed the petition. Aggrieved

against the order denying her maintenance the present petition has been

filed.

6. Learned counsel for the petitioner submits that the petitioner is

a legally wedded wife of the respondent, but he has callously abandoned her

knowing fully well that she has no independent source of income. It is also

submitted that the respondent is working in a company and is earning

`60,000/- per month. He also owns immovable properties at Muradabad UP

and Rohini, New Delhi, whereas the petitioner has no source of income and

and she is fully dependent upon her parents for sustenance. Learned counsel

further submits that filing of an application under Section 9 of the Hindu

Marriage Act by the respondent was only the first step in the direction of

taking divorce as it was never the intention of the husband to bring back the

petitioner to the matrimonial home, and this aspect is evident from the fact

that after decree of restitution of conjugal rights instead of creating a

conducive atmosphere for the wife to return the husband, he proceeded to

file case for decree of divorce, which was granted on 31.5.2018. It is further

submitted that even where a wife is divorced by the husband on the ground

of desertion then also the divorced wife would continue to enjoy the status

of wife for the limited purpose of maintenance and therefore, the husband

has statutory duty to maintain the petitioner. In support of his contention he

relies upon Dr. Swapan Kumar Banerjee Vs. State of West Bengal 2019
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 Criminal Revision (F) No. 467 of 2017 4

(4) RCR (Crl.) 628.

7. Per contra, the respondent who appears in person, submits that

there was a decree of restitution of conjugal rights against the petitioner and

once the petitioner-wife failed to perform the conjugal rights, she would not

be entitled to any maintenance. It is further submitted that the decree of

restitution of conjugal rights was a bipartite decree, where the wife was

given full opportunity to appear and lead evidence to establish any reason

attributable to the respondent-husband and his family members giving the

sufficient cause to reside separately. Upon failure of the wife to bring any

such circumstances in the proceeding of restitution, decree came to be

passed in favour of the respondent—husband. The said decree has now

attained finality as there is no challenge to the same. It is further submitted

that when there is no reasonable cause or excuse for the wife to reside

separately, then the wife is not entitled to the maintenance. He mainly relied

on Section 125 (4) of the Code, which provides that a wife shall not be

entitled to receive any maintenance under this Section if she refuse to live

with her husband without any sufficient reason. He further submits that the

instant case clearly falls under Section 125 (4) of the Code and therefore, the

petitioner is not entitled to any maintenance as she has failed to perform her

conjugal duties after the decree of conjugal rights. Otherwise also the

petitioner is fully a woman of resources and she is in a position to maintain

herself, as held by the court below.

8. I have heard learned counsel for the parties and have perused

through the documents annexed with the petition as well as produced at the

time of arguments.
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9. The sole question that falls for consideration in the instant

petition is, whether the petitioner is entitled to maintenance from the

respondent despite the fact that a decree of conjugal rights was passed

against the petitioner and since she failed to perform her conjugal rights,

even a decree of divorce has also been passed against her on account of

desertion and cruelty committed by her and whether Section 125 (4) of the

Code of Criminal Procedure would come into effect, which stipulate that a

wife will not be entitled to maintenance if she refuses to live with her

husband without any sufficient reason?

10. The petitioner herein has approached this court seeking

maintenance under Section 125 Cr.P.C, claiming that she was married to the

respondent and is unable to maintain herself. It is submitted that even

though there is a decree of divorce but she would still be entitled to receive

maintenance. This claim is challenged by the respondent husband on the

ground that he has got a decree of divorce from the petitioner on the grounds

of cruelty and desertion; that he has been subjected to cruelty as he was

falsely implicated by the petitioner in proceedings initiated under Section

498-A, 406 IPC, in which proceedings he stands acquitted; the petitioner has

subjected him to a various kinds of litigation and has remained unsuccessful

in the same; refused to join his company in proceedings that were initiated

under the Domestic Violence Act 2005; apart from the main argument that

she is a person of substantial means as she is running a playway school in

the name of 'Baby Smile Care'.

11. The Supreme Court in a recent judgment reported as Dr.

Swapan Kumar Banerjee (Supra) has ruled that a wife, who has been
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 Criminal Revision (F) No. 467 of 2017 6

divorced on the ground of desertion, is entitled to claim maintenance from

her ex-husband.

“8. No doubt, as urged by Mr. Debal Banerjee, explanation II to

Section 125 of the Cr.P.C. by deeming fiction includes a
divorced woman to be a wife and, therefore, a woman who has
been divorced by her husband can still claim maintenance under
Section 125 of the Cr.P.C. The question is how we should read
the provisions of sub-section (4) in this regard, especially when
we deal with those women, against whom a decree for divorce
has been obtained on the ground that they have deserted their
husband. Once the relationship of marriage comes to an end,
the woman obviously is not under any obligation to live with her
former husband. The deeming fiction of the divorced wife being
treated as a wife can only be read for the limited purpose for
grant of maintenance and the deeming fiction cannot be
stretched to the illogical extent that the divorced wife is under a
compulsion to live with the ex-husband. The husband cannot
urge that he can divorce his wife on the ground that she has
deserted him and then deny maintenance which should
otherwise be payable to her on the ground that even after
divorce she is not willing to live with him. Therefore, we find no
merit in the contention of Mr. Debal Banerjee.”

12. Section 125 of the Code of Criminal Procedure deals with order

of maintenance of wife, children and parents. Whereas Sub-Section 4

provides that no wife shall be entitled to receive an allowance from her

husband under this section if she is living in adultery, or if, without any

sufficient reason, she refuses to live with her husband, or if they are living

separately by mutual consent. Section 125 (4) of the Code of Criminal

Procedure reads as under:-

“125 (4) No Wife shall be entitled to receive an allowance from

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 Criminal Revision (F) No. 467 of 2017 7

her husband under this section if she is living in adultery, or if,

without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.”

13. In the present proceedings the petitioner had filed various

litigations against the respondent and has been unsuccessful in all. The

respondent had been implicated in the FIR under Sections 498A and 406

IPC, in which he and his family members were exonerated by the judgment

dated 17.2.2016 and the judgment rendered acquitting the respondent has

attained finality. The present application for maintenance was filed in April

2016, after the acquittal and at that point in time too there was no sufficient

cause for the petitioner to reside separately from her husband. However,

since the divorce has taken place thereafter, and in view of the judgment

rendered in Dr. Swapan Kumar Banerjee (Supra), the petitioner would in

normal circumstances have been entitled to receive maintenance. But is she

really entitled to?

14. The legislature enacted Section 125 Cr.P.C. as a measure of

social justice and specially enacted to protect women and children and falls

within the constitutional sweep of Article 15 (3) reinforced by Article 39.

The claimant has to claim that she/they, be it parents or wife has no means

of to support themselves and are entirely dependent of the

husband/father/son/daughter. The petitioner herein has failed to establish

that she had no source of income, mainly because she failed to disclose the

details of her bank account. It has always been the case of the respondent

that the petitioner had sufficient means to support herself and was running a

playway school. The petitioner, while denying the said contention, admitted

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 Criminal Revision (F) No. 467 of 2017 8

when asked to furnish details did not do so nor sought time to place the

relevant document on the record. The family court took into account the

statement made by her in her cross examination “ I do not remember my

bank account No. I cannot supply my statement of my bank account.’’ Even

otherwise in these proceedings the petitioner has not placed, or sought

permission to place on record the details of her bank accounts to reflect that

she had no source of income. Once the respondent had taken a specific plea

that the petitioner was running a playway school and coupled with her own

admission that she is maintaining a bank account and had a PAN card, the

petitioner should have adduced evidence to substantiate that she had no

source of income. In such a situation, the Family Court rightly came to the

conclusion that the petitioner had not approached the court with clean hands

and is not entitled to any maintenance.

15. There is no infirmity with the impugned order. Consequently,

this petition stands dismissed.

28.2.2020 (JAISHREE THAKUR)

prem JUDGE

Whether speaking/reasoned Yes

Whether reportable Yes

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