Allowed

Dilshad v. Smt. Dilruba

Uttarakhand HC22 Oct 2013C482/459/2010

Case brief

AI extract

What is this about?

The High Court allowed an application under Section 482 Cr.P.C. under which the family court order granting interim maintenance set aside it quashed underlying interim maintenance order held the wife was not entitled to it due to living in adultery.

What did the court decide?

Impugned judgment and order dated 06.05.2010 is set aside; respondent wife is not entitled to interim maintenance allowance.

Dilshad Vs Smt. Dilruba — Maintenance and Alimony | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Misc. Application No. 459 of 2010

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(Under Section 482 Cr.P.C.)

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Dilshad .….…… Applicant

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versus

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Smt. Dilruba ………. Respondent

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Mr. Manish Arora, Advocate, present for the applicant. None present for the respondent.

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U.C. Dhyani, J. (Oral)

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On an application filed by Dilruba (respondent herein) for grant of interim maintenance allowance, learned Additional Judge, Family Court, Roorkee passed the order on 06.05.2010. The application for grant of interim maintenance was allowed. Opposite party Dilshad (applicant herein) was directed to pay Rs. 500/- per month as interim maintenance allowance to Smt. Dilruba. Aggrieved against the impugned judgment and order dated 06.05.2010, present application under Section 482 Cr.P.C. was moved.

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Notice was issued to the respondent, but none appeared for her despite service of notice. No counter affidavit is filed on her behalf either. In other words, the contents of the application under Section 482 Cr.P.C. remained un-rebutted.

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The sole contention of the learned counsel for the applicant is that the respondent is living in adultery with Talib. A plea to this effect was taken by the applicant in his written statement. It was also pleaded that Dilruba liked Talib and eloped with him. Dilruba also filed a case of divorce against Dilshad.

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In order to substantiate his contention, learned counsel for the applicant relied upon the statement of Dilruba recorded on 28.05.2009 before the Sub Divisional Magistrate, Haridwar. In her statement, she admitted that she went along with Talib on her own volition. She admitted that Talib did not take her away with him forcibly. She also stated that she did not want to live with Dilshad and wanted to go and live with her parents.

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Reliance was also placed upon the report dated 30.11.2008 of Mahila Help Line, Haridwar. In it’s report, Marriage Counseling Centre mentioned that Dilruba failed to perform her conjugal rights. She was in the habit of roaming around here and there. Once she went with Talib. An NCR was lodged in this respect. Dilruba was recovered from the house of Talib and was produced before the Sub Divisional Magistrate, Haridwar. She was thereafter given in the custody of her father.

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There is, therefore, substance in the argument of learned counsel for the applicant that Dilruba lived in adultery and therefore, she was not entitled to receive allowance for the maintenance of herself from Dilshad.

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Sub-section (4) of Section 125 Cr.P.C. says that-

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“(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.”

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It is, therefore, held that since Dilruba lived in adultery, therefore, she was not entitled to interim maintenance allowance from her husband. Interference is thus called for in the impugned judgment and order.

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Application under Section 482 Cr.P.C. is thus allowed. Impugned judgment and order dated 06.05.2010 is set aside.

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Let a copy of this Judgment be transmitted to learned Court below for compliance.

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(U.C. Dhyani, J.) 22.10.2013

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Kaushal

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Dilshad v. Smt. Dilruba

Case brief

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Dilshad v. Smt. Dilruba

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