Home > CrPC 125 > No alimony for women walking out of marriage-District Court Delhi

No alimony for women walking out of marriage-District Court Delhi

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

                      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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                1/7the order 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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                2/7Cr.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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                3/7discharge 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 her
examination, 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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                4/7Cr.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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                5/7deposition 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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                6/7copy 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
C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                7/7C.R. 45/10                   Kulwant Kaur & Anr.  vs. Maan Singh                                                8/7
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