125 CRPC

1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR
S.B.CRIMINAL REVISION PETITION NO. 72/2015
Paras mal
Vs.
Sushila Devi & Anr.
Date of Order :: 27th July, 2016
HON’BLE MR.JUSTICE GOVERDHAN BARDHAR
Mr. Anil Mehta, counsel for the petitioner.

Mr. T.S. Champawat, for the respondent.
=====
Heard the learned counsels for the parties.
The present revision petition has been filed by the
petitioner against the order dated 16.09.2014 in Criminal Case
No. 795/2012 whereby, learned Judge, Family Court,
Rajsamand partly allowed the application filed under Section
125 Cr.P.C. filed by the respondents directing the petitioner to
pay maintenance of Rs. 3000/- per month to the respondent
no.1.
Learned counsel for the petitioner submits that
petitioner and respondent no.1 are living separately as per
social customs and therefore, there is no question of granting
any alimony to respondent no.1. It is further argued that an
agreement has been entered into between the petitioner
husband and respondent no.1 wife, breaking the wedlock
willingly and to live separately, therefore, she is not entitled

2
for any amount under Section 125 Cr.P.C. It is also submitted
that the respondent has filed the application after a long
period of 11 years, and therefore, the impugned order is liable
to be quashed and set aside. According to learned counsel for
the petitioner, since the customary divorce was obtained by
mutual consent, therefore, the respondent is not entitled to
maintenance. He placed reliance on judgment of Hon’ble
Supreme Court in the case of Vanamala Vs. H.M. Ranganatha
Bhatta reported in (1995) 5 SCC 299.
On the other hand, the learned Counsel for the
respondent-wife, has argued that the petitioner and
respondent both belong to Scheduled caste category and there
is provision of customary divorce in their society and since
admittedly, on 16.10.2000, both the parties had obtained
divorce as per their social custom because the petitioner
husband performed customary Nata marriage, therefore, since
the divorced husband had neglected and refused to maintain
her, she is entitled for maintenance, the order passed by the
learned Family court is absolutely legal and does not call for
any interference.
After hearing learned counsel for the parties, I have
perused the impugned order and scanned the entire record.
Section 125 of the Code makes provision for the grant of
maintenance to wives, children and parents. Sub-section (1) of
Section 125 inter alia says that if any person having sufficient
means neglects or refuses to maintain his wife who is unable
to maintain herself, a Magistrate of the first class may, upon

3
proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife. Section
125(4) of the Cr.P.C. reads as under:
“125. Order for maintenance of wives, children and

parents, -
1. xxxxx
2. xxxxx
3. xxxxx
4. No wife shall be entitled to receive an allowance
for the maintenance or the interim maintenance
and expenses of proceeding, as the case may be
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.
5. On proof that any wife in whose favour an order has

been made under this section is living in adultery, or
that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.
A holistic reading of the provisions would clearly reveal
that that responsibility and liability of a person to maintain
wife, children and parents rests on condition that if any person
having sufficient means neglects or refuses to maintain them
(wife, children, parents), he can be ordered to make a
monthly allowance for maintenance for his wife or child or
parents at such monthly rate. The sub-sections 4 and 5,
categorically makes it clear that when wife is not entitled to
maintenance, wherein it is specifically enacted by the

4
legislature that wife is not entitled to receive maintenance if
she is living in adultery or if she refuses to live with her
husband without any sufficient reason or that they are living
separately by mutual consent. However, in case a wife who
has been divorced and has not remarried is entitled to claim
maintenance or interim maintenance and expenses of
proceedings from the husband.
In the instant case, it is admitted by the petitioner in his
written reply to the application filed by the wife under Section
125 Cr.P.C that respondent was the legally wedded wife of the
respondent prior to the passing of customary divorce and on
16.10.2000, they took divorce according to custom prevailing
in their society. Both the parties have admitted that in their
society, customary divorce is recognized, therefore, the
divorce deed in the form of agreement was executed. The
certified copy of the agreement pertaining to divorce reveals
that in the agreement it has been agreed by both the parties
that if husband performs second marriage, either will not have
any objection. In the statement Smt. Sushila AW/1 has stated
that petitioner has performed second marriage with one
Manohari and they are living together and have two
daughters. In reply to the application under Section 125
Cr.P.C., the petitioner husband has admitted in para no.4 that
he has performed second marriage with Manohari Khateek.
Thus, the stand of the petitioner husband that by virtue of
Section 124 (4) Cr.P.C, wife is not entitled to maintenance
because she is living separately by mutual consent is not at all

5
tenable. In a situation when the petitioner husband contracted
second marriage, the first wife has sufficient reason to live
separately and therefore, she cannot be denied maintenance
under Section 125 Cr.P.C. On the basis of agreement dated
16.10.2000, it cannot be said that wife is living separately by
mutual consent. It is also not contended by the petitioner that
the respondent has remarried after the agreement dated
16.10.2000 pertaining to customary divorce. Thus, by virtue
of the provisions of Section 125 Cr.P.C referred to above, the
respondent is entitled to maintenance.
In view of above, the learned court below has not
committed any error in awarding maintenance to the
respondent wife as per Section 125 of Cr.P.C. Hence, this
revision petition is hereby dismissed.
(GOVERDHAN BARDHAR), J.
Bjsh

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1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

S.B.CRIMINAL REVISION PETITION NO. 72/2015

Date of Order :: 27th July, 2016

HON’BLE MR.JUSTICE GOVERDHAN BARDHAR

Mr. Anil Mehta, counsel for the petitioner.

Heard the learned counsels for the parties.

The present revision petition has been filed by the

petitioner against the order dated 16.09.2014 in Criminal Case

No. 795/2012 whereby, learned Judge, Family Court,

Rajsamand partly allowed the application filed under Section

125 Cr.P.C. filed by the respondents directing the petitioner to

pay maintenance of Rs. 3000/- per month to the respondent

Learned counsel for the petitioner submits that

petitioner and respondent no.1 are living separately as per

social customs and therefore, there is no question of granting

any alimony to respondent no.1. It is further argued that an

agreement has been entered into between the petitioner

husband and respondent no.1 wife, breaking the wedlock

willingly and to live separately, therefore, she is not entitled

for any amount under Section 125 Cr.P.C. It is also submitted

that the respondent has filed the application after a long

period of 11 years, and therefore, the impugned order is liable

to be quashed and set aside. According to learned counsel for

the petitioner, since the customary divorce was obtained by

mutual consent, therefore, the respondent is not entitled to

maintenance. He placed reliance on judgment of Hon’ble

Supreme Court in the case of Vanamala Vs. H.M. Ranganatha

Bhatta reported in (1995) 5 SCC 299.

On the other hand, the learned Counsel for the

respondent-wife, has argued that the petitioner and

respondent both belong to Scheduled caste category and there

is provision of customary divorce in their society and since

admittedly, on 16.10.2000, both the parties had obtained

divorce as per their social custom because the petitioner

husband performed customary Nata marriage, therefore, since

the divorced husband had neglected and refused to maintain

her, she is entitled for maintenance, the order passed by the

After hearing learned counsel for the parties, I have

perused the impugned order and scanned the entire record.

Section 125 of the Code makes provision for the grant of

maintenance to wives, children and parents. Sub-section (1) of

means neglects or refuses to maintain his wife who is unable

to maintain herself, a Magistrate of the first class may, upon

proof of such neglect or refusal, order such person to make a

monthly allowance for the maintenance of his wife. Section

125(4) of the Cr.P.C. reads as under:

“125. Order for maintenance of wives, children and

5. On proof that any wife in whose favour an order has

A holistic reading of the provisions would clearly reveal

that that responsibility and liability of a person to maintain

wife, children and parents rests on condition that if any person

having sufficient means neglects or refuses to maintain them

(wife, children, parents), he can be ordered to make a

monthly allowance for maintenance for his wife or child or

parents at such monthly rate. The sub-sections 4 and 5,

categorically makes it clear that when wife is not entitled to

maintenance, wherein it is specifically enacted by the

legislature that wife is not entitled to receive maintenance if

she is living in adultery or if she refuses to live with her

husband without any sufficient reason or that they are living

separately by mutual consent. However, in case a wife who