1. The petitioner is the wife of the 1st respondent. She filed M.C No. 46/87 in the court of the II Additional Munsif Magistrate Bapatla for grant of maintenance. It was opposed by the 1st respondent on the ground that he obtained a decree for restitution of conjugal rights and that the petitioner is not entitled to the grant of maintenance as she refused to join him as per the decree of the Court.
2. The learned II Additional Munsif Magistrate Bapatla allowed the petition holding that there are justifiable grounds for the petitioner to stay away from the 1st respondent and that she was-afraid of the 1st respondent as there was no security to her life in his hands. He further held that the 1st respondent abused the petitioner in filthy language. The learned Magistrate found that the 1st respondent is possessed of 6 acres of land yielding an income of Rs. 25,000/- per year and that the petitioner has no property whatsoever and that she has no means or ability to maintain herself. On finding that the 1st respondent drove out the petitioner and did not try to provide any maintenance to her the learned Magistrate granted maintenance @ Rs. 200/- per month. The revision filed by the 1st respondent in Crl R.P No. 86/90 was allowed by the learned II Additional Sessions Judge Guntur on the ground that the petitioner had not obeyed the decree in O.P No. 5/88 and the order of the trial court was set aside.
3. Sri P. Phalguna Rao the learand counsel for the petitioner conceded that the petitioner had every justification to stay away from the 1st respondent and the decree in O.P 5/88 is not a bar to the grant of maintenance under Section 125 of the Code of Criminal Procedure according to which even a divorced woman is entitled to maintenance. Sri Padmanabha Reddy the learned counsel appearing for the 1st respondent submitted that the petitioner had no justification to disobey the order in OP 5/88 and yet claim maintenance that there was no refusal or neglect on the part of the 1st respondent to maintain the petitioner and hence the learned Judge was correct in setting aside the order of the trial Court.
4. In Syed Gulam Sajjad v. Parveen Fatima (1) 1980 (2) An W.R 335 this court held that the mere praying of a decree for restitution of conjugal rights does not automatically bar the wife from claiming maintenance and that such a decree is only a piece of evidence to be taken into consideration by the Magistrate in determining the wife's entitlement to maintenance.
5. The Punjab and Haryana High Court in Darshan Pal v. Smt. Darshana (2) 1986 Crl L.J 48 held that a divorced wife under Section 125(1) of the Code of Criminal Procedure is entitled to maintenance from her ex-husband until her remarriage or unless she has received some, compensation from him and such light to maintenance flows from her new status as a divorced wife. It was further held that it is not open to the husband to plead that since the wife did not comply with the earlier decree for restitution of conjugal rights and since he was even after the decree for divorce willing to keep her she is not entitled to maintenance.
6. In Mohd Shakil v. Smt. Shaheena Parveen (3) 1987 Criminal Law Journal page 1509, the Delhi High Court held that maintenance to the wife which is her right under section 125 cannot be denied merely because the husband has obtained a decree for restitution of conjugal rights against her.
7. On the conspectus of the above decisions it is clear that a decree for restitution of conjugal rights is not an absolute bar for consideration of an application under Section 125 of the Code of Criminal Procedure. If the Court is satisfied that the wife had justifiable grounds to stay away from the husband maintenance can be granted. In the present case the learned Magistrate clearly held that the wife had every reason to stay away from her husband as there was no security to her life in the hands of the husband. When that is the case the learned Magistrate was correct in holding that she is entitled to the grant of maintenance.
8. The decision reported in S.R Govinda Rajan @ Babu v. Rukmani Govinda Rajan (4) 1980 Madras Law Journal (Criminal) page 62 relied on by the learned counsel for the 1st respondent in support of his contention that the existence of a decree for restitution of conjugal rights is an absolute bar to the consideration of a petition under section 125 of Code of Criminal Procedure cannot be followed in view of the decision of this Court reported in 1980 (2) An. W.R page 335 (1)
9. It is also relevant to not that the petition under Section 125 was filed in 1987 whereas the petition for restitution of conjugal rights was filed by the 1st respondent in the year 1987. Under such circumstances; the Bombay High Court held in Mrs. Amina Mohammadali Khoja v. Mohammadali Ramjanali Khoja (5) 1985 Criminal Law Journal page 1909 that an ex parte decree for restitution of conjugal rights obtained by the husband, with a view to thwart passing of maintenance order cannot be countenanced. If the evidence on record shows that the husband had by his conduct deserted his wife and refused to maintain her maintenance could not be refused to the wife.
10. It is an unfortunate case where the petitioner who is aged 60 years and driven to the necessity to live in a temple depending on alms whereas her husband the 1st respondent is well placed in the life having 6 acres of land and is deriving an income of Rs. 6,000/- therefrom. The learned Sessions Judge ought not to have set aside the order of the Magistrate solely on the ground that there is a decree for restitution of conjugal rights in favour of the 1st respondent.
11. In the result the Revision is allowed and the order of the learned II Additional Sessions Judge, Guntur in Criminal Revision Petition No. 86/1990 is set aside and the order in M.C No. 46/1987 on the file of the II Additional Munsif Magistrate Bapatla is restored. The 1st respondent is granted two months time for paying the arrears of maintenance from today.