No alimony for women walking out of marriage, who cannot prove wilful neglect by husband despite sufficient means

  

No alimony for women walking out of marriage, who cannot prove wilful neglect by husband despite sufficient means-Delhi district court (saket) judgment (125crpc. case)

IN  THE  COURT OF  SHRI  RAJEEV  BANSAL, ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEWDELHI.

 
     Criminal Revision  No. 45/10                  (Unique No.02403R0251242010)

1.   Kulwant Kaur

      W/o Sh. Maan Singh

2.   Master Simran Singh

      S/o Sh. Maan Singh

      Through Natural Guardian

      Kulwant Kaur. 

      Both R/o F-11/4,  Malviya Nagar,

      New Delhi                                                   ...........Revisionist

Vs

Sh.  Maan Singh

S/o Sh. Jeet Singh,

R/o WZ/111-B, Gurunanak Nagar,

Tilak Nagar, New Delhi                                   ..........Respondent

Date of Initial Institution      :30.07.2010

Date of institution in the present court:19.10.2010

Date of Reserving Order      :03.10.2011

Date of Pronouncement Order      :31.10.2011

ORDER

The present revision petition has been filed against dated 26.05.2010 by which the petition filed under Section 125 Cr.P.C by the revisionist was dismissed by the Ld. Trial Court.

2. It has been stated in the petition that the revisionist No.1 Kulwant Kaur married respondent on 26.06.1992 and out of this marriage, petitioner No.2 was born on 10.11.1993.   It has been alleged that the respondent committed cruelties upon the revisionist No.1 which compelled her to register an FIR with CAW Cell against him.  The revisionist is stated to be living  separately since 09.04.1995 and has no independent source of  income whereas the respondent is stated to be earning Rs.20,000/-  per month by working as Electrician and Palmist.   The petition  under Section 125 Cr.P.C was thus filed on 25.09.2003 by the revisionist No.1 claiming a maintenance of Rs.11,000/- per month for herself and Rs.5,000/- for revisionist No.2.  It was further stated that earlier petition filed under Section 125 Cr.P.C by the revisionist was dismissed in default on 01.09.1997.    

3. After consideration of the rival contentions of the parties, the Ld. Trial Court dismissed the petition under Section 125 Cr.P.C vide order dated 26.05.2010.   

4. Grievance of the revisionist is that the respondent is a man of means whereas the revisionist has no independent source of income.  Further, it has been stated that the respondent had voluntarily deserted both the revisionists and has not made any arrangement for their maintenance.  Further, it has been stated that dismissal of previous petition filed under Section 125 Cr.P.C is not a bar for filing a fresh petition under Section 125 Cr.P.C. Thus on these grounds, the impugned order has been assailed by the revisionists. 

5. On the other hand, respondent/husband has stated that the revisionist No.1 herself deserted him and hence she is not entitled to any maintenance.  Apart from it, it has also been stated that the earlier application filed under Section 125 Cr.P.C was dismissed in default vide order dated 01.09.1997 and the second application for the same relief will not lie.  

6. I have heard both the Ld. Counsels and have gone through the Trial Court record.  The Ld. Trial Court in its impugned order dated 26.05.2010 has observed that the revisionist No.1 failed to discharge the initial burden of proving neglect by the husband. The Trial Court also observed that the circumstances in which the petitioner/wife left the matrimonial home was also not specifically dealt with by her.  It is trite that in order to claim maintenance under Section 125 Cr.P.C , it is obligatory upon the claimant to establish that there was willful neglect on the part of the husband to maintain the claimant. Ld. Trial Court took into consideration the demeanour of the revisionist during the course of her deposition in the court. Court’s observation are recorded in the deposition of the petitioner according to which the witness  had called her father inside the court by signaling. The court also observed that the witness was warned time and again, during herexamination, not to solicit help in her examination from her counsel or anybody else, but she did not desist from it. Ld. Trial Court rightly took exception to this conduct of the revisionist.  Ld. Trial Court also observed that the revisionist failed to show the circumstances under which she left the matrimonial home. Another factor which was noted by the Ld. Trial Court was the dismissal of earlier petition filed under Section 125 Cr.P.C on 01.09.1997.  However, the second petition under Section 125 Cr.P.C was decided on merits by the Ld. Trial Court and after considering the merits of the case, the same was dismissed. The argument of the petitioner that the Ld. Trial Court dismissed the second petition only on the ground that the first petition having been dismissed, is a bar against filing of a second petition, is factually incorrect.  The Ld. Trial Court has not dismissed the second petition under Section 125 Cr.P.C only on the ground of dismissal of the petition under Section 125 Cr.P.C.  Only an observation was made by the Ld. Trial Court that the first petition under Section 125 Cr.P.C was dismissed by the court on 01.09.1997 but nevertheless the second petition was decided on merits.  In her cross-examination, petitioner stated that she does not know as to whether the respondent was doing the work of Electrician and had nominal income. She admitted that at the time of marriage, the respondent was working as an Electrician but she could not tell as to whether the respondent had his own shop or was working for somebody else.  She further stated that the respondent was provided work by her brother when he could not succeed in his own work.  She further admitted that the respondent was taken to Hong Kong by her brother.  The deposition of the petitioner, read as a whole, does not show that the respondent had sufficient means but still he neglected or showed his inability to maintain the petitioner.  It is vital that the petitioner is painfully silent about the circumstances in which she left the company of the respondent and started living separately from the husband.  When the circumstances of living separately do not surface, adverse inference is to be drawn against the wife that she left the matrimonial home willfully and with her own choice. It is settled position of law that one cannot take benefit of his own wrongs.   It is not that all living separate are sufficient to entitle a wife to claim maintenance from the husband.  She must prove without fail that the husband refused to maintain her despite having sufficient means to do so. Wife cannot walk out of the house at her sweet will and also claim maintenance from the husband. The petitioner has failed to prove the circumstances resulting in her living separate from the respondent/husband.   In this view of the matter, I do not find any infirmity in the impugned order and hence the present revision petition is dismissed.  

7.  TCR be returned back to the concerned court alongwith a copy of this order. 

8. File be consigned to the Record Room. 

Announced in the open court.                 

( Rajeev Bansal )

Dated:31.10.2011               
ASJ-3/South District

Saket Courts, New Delhi