No maintenance for erring wife ..deserting wife

Uttaranchal High Court

Smt. Vimla Chauhan vs Yashpal Singh Chauhan on 17 November, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No.120 of 2008

Smt. Vimla Chauhan ………. Revisionist

Versus

Yashpal Singh Chauhan …… Respondent

Dated: November 17, 2011

Hon’ble Servesh Kumar Gupta, J.

Learned counsel of the revisionist Smt. Vimla Chauhan is present while none turns up on behalf of the opposite party Sri Yashpal Singh Chauhan.

It is to be noted that the revisionist, in the utter violation of the directions of the Court, did not take any step for effecting service upon the respondent. Thus, as per the mandate of Chapter XII Rule 4 of High Court Rules, this revision is liable to be dismissed.

Besides, on merits, it is pertinent to mention that revisionist had filed two petitions against her husband/ respondent, one was u/s 13 of Hindu Marriage Act and another was u/s 125 Cr.P.C. seeking maintenance. Both the petitions were clubbed together by the Judge, Family Court, Pauri Garhwal and they were adjudicated on 31.3.2008 against the wife Smt. Vimla Chauhan, whereagainst a First Appeal No.46 of 2008 was preferred before the Division Bench of this Court, challenging the order of refusing the decree of divorce. Criminal revision no.120 of 2008 (present one) was preferred challenging the order, refusing the maintenance u/s 125 Cr.P.C.

First Appeal No.46/2008 has been decided by the Division Bench of this Court on 20.5.2009 after reassessment of the evidence on record. This Division Bench, while concurring with the finding of the lower court, was of the view that Yashpal Singh has not treated his wife with cruelty, and that the husband has not deserted the petitioner (wife), rather it is the petitioner herself who had left the matrimonial home without any sufficient reason. The Division Bench further observed that it is a settled principle of law that the petitioner, for her own wrong, cannot be granted relief of divorce against the respondent.

Therewithal, it is essential to mention Section 125(4) Cr.P.C., which reads as under: –

“125 (4) No wife shall be entitled to receive an allowance from her husband under this section 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.”

In view of the above, this revision is devoid of merits in toto, and the same is also liable to be dismissed in non- compliance of the directions of this Court. The revision is dismissed accordingly.

(Servesh Kumar Gupta, J.)

17.11.2011

Rajeev Dang

Source

http://www.indiankanoon.org/doc/1974989/

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