Jasholal Agrawal @ Jain vs Smt. Puspabati Agrawala : 1994 Cri. L. J. : 185 : 1994 (1) Crimes 161 : 1994 (2) DMC 169 : 1994 (2) HLR 517 : 1993 (6) OCR 576 : 1993 LRC Online 6 (Ori)
Section 125-Grant of maintenance-finding of the Civil Court in matrimonial proceeding is binding on the Criminal court is not entitled to question the correctness and validity of the Civil Court's decision-But it is incumbent on the part of the trial Courts to scrutinize the judgments passed in the civil suits and ascertain if any such finding had been recorded therein-Impugned orders set aside and matter remitted to Magistrate for fresh consideration in accordance with law-Petition allowed.
Held : Coming to the case in hand, from the discussions in the orders passed by the Courts below it is clear to me that the Courts have not made any attempt to ascertain if the Civil Court either in the suit filed by the husband for restitution of conjugal life/divorce or in the suit filed by the wife for maintenance had recorded a finding that she had deserted her husband. As noted earlier the consensus of the views taken in the decisions referred to earlier clearly bring out the position that it is the finding of the Civil Court regarding desertion which is binding on the Criminal Court. If it was a case of a decree of annulment of marriage then such decision of the Civil Court per se would be suficient to disentitle the wife to claim maintenance. But such is not the position here. The contention in the present case is that the Civil Courts' finding that the wife had deserted her husband and had not joined the matrimonial home on her will and desire is binding on the Criminal Court. It was therefore incumbent on the part of the Courts below to scrutinize the judgments passed in the civil suits and ascertain if any such finding had been recorded therein. A further question which needs to be examined in the case is that if such a finding was recorded by the Civil Court whether in the averments made in the petition filed under Section 125, Cr.P.C. and in the evidence led in the proceeding there is anything to show that subsequent to the decree of the Civil Court there has been a material change in the fact position or a supervening circumstances has taken place which entitles the wife to maintenance. No such attempt has been made by the Courts below. The learned Additional Sessions Judge repelled the contention relating to the maintainability of the application merely on the ground that change of status of the claimant from "wife" to "divorced wife" during pendency of the proceeding under Section 125 Cr.P.C. is not material and it will not be prudent to hold that on account of such change of status that the proceeding is not maintainable. The approach is completely erroneous based on misconception about the nature of the objection raised and the question for consideration. The learned Magistrate also does not appear to have delved deep into the question. He merely discussed some decisions of this Court and other High Courts laying down the general principles discussed in the preceding paragraphs and appears to have laid much stress on the fact that the decree of divorce being an ex parte one could not be taken advantage of by the husband for negativing the wife's claim of maintenance.