Balaram Dash v. Smt. Gitanjali Dash : 2000 Crl. L.J. 4175 : 2001 (1) RCR (Cri) 80 : 2001 (2) DMC 105 : 2001 (1) HLR 240 : 2000 (19) OCR 308 : 2000 (2) OLR 223 : 2001 (1) Mar .L.J. 349 : LRC Online 4 (Orl)
Section 125-Grant of interim maintenance-When a decree for restitution of conjugal right has been passed against the wife it can be held prima facie that refusal of wife to comply with direction regarding restitution amounts to refusal to live with husband without sufficient reason-In view of fact that decree for restitution of conjugal right has not been complied with by wife, prima facie, it must be taken that wife gas refused to live with her husband without sufficient reason and is disentitled to claim maintenance-Order of Interim Maintenance in favour of wife cannot be sustained.
Held : The order of interim maintenance is in favour of the wife as well as the minor daughter. There is no dispute that during the pendency of a proceeding Under Section 125, Code of Criminal Procedure, a direction for interim maintenance can be passed if the Court is prima facie satisfied that the wife should be paid interim maintenance Section 125(5) of the Code of Criminal Procedure contemplates that where the wife refuses to live with her husband without sufficient reason, order of maintenance can be cancelled. When a decree for restitution of conjugal right has been passed against the wife, it can be held prima facie that refusal of the wife to comply with the direction regarding restitution amounts to refusal to live with the husband without sufficient reason. It is, no doubt, true that an appeal against the decree for restitution of conjugal right is pending. However, for the purpose of finding about prima facie entitlement for grant of interim maintenance, mere pendency of the appeal will not tilt the balance in favour of the wife. Therefore, in view of the fact that the decree for restitution of conjugal right has not been complied with by the wife, prima facie, it must be taken that the wife has refused to live with her husband without sufficient reason and is disentitled to claim maintenance. In such view of the matter, the order of interim maintenance in favour of the wife cannot be sustained.