Judgment:
K.L. Issrani, J.
1. Present revision petition has been filed by the petitioner-wife against the rejection of her application under Section 125 of the Code of Criminal Procedure by the Family Court, Cuttack, in Criminal Proceeding No. 40 of 1991.
2. Submission of the learned Counsel for the petitioner is that the Opp. Party-husband has sufficient means to maintain the petitioner but he has neglected and refused to maintain her. The Family Court has rejected her petition on the ground that the petitioner was unable to substantiate her allegations against the Opp. Party. It has been submitted by the learned Counsel for the petitioner before this Court that the petitioner has filed a copy of the complaint in O.S. No. 18 of 1972 filed by the Opp. Party in which allegations against her chastity were made by the Opp. Party. Though the Court referred to this document in its judgment, it has ignored to take note of its effect and that the revision petition be allowed or the matter be referred to the lower Court for fresh decision.
3. The learned Counsel for the Opp. Party-husband vehemently opposes the submission of the learned Counsel for the petitioner and submits that since the petitioner fails to substantiate her allegation and there is no justification for her to desert the Opp. Party, she is not entitled to any maintenance. He further submits that the Opp. Party is still ready and willing to keep her, but the petitioner has always refused to do so. Therefore, she is not entitled to any maintenance.
4. Much opportunity was given to the parties by this Court for reconciliation but it failed. Before this Court, submission of the petitioner was that there being apprehension of danger to her life and cruelty on her, she is not willing to go to her husband and live with him. Though a number of chances were given to the parties to come to a compromise, no fruitful result came out.
5. While deciding a petition under Section 125, Cr.P.C, it is to be seen as to whether the husband having sufficient means neglects and refuses to maintain his wife. So far as the findings are concerned, the Family Court has held that the husband-Opp. Party has sufficient means to maintain but has not decided the other factor, whether the husband-Opp. Party neglects or has sufficient refuse to maintain the wife-petitioner.
6. Submission of the learned Counsel for the Opp. Party is that the petitioner has not stated in her application under Section 125, Cr.P.C. about the suit (O.S. No. 18 of 1973). So, the lower Court was right in not considering the same. Unless there is pleading to that effect, the Court is not bound to determine that fact. I do not agree with this submission of the learned Counsel for the Opp. Party. The Family Court while dealing with the facts, in paragraph 2 of its order, has mentioned about O.S. No. 18 of 1973 filed by the Opp. Party in the Court of the Second Subordinate Judge, Cuttack, for judicial separation but has not dealt with the effect of that suit and the pleadings made therein. The submission of the learned Counsel for the petitioner is that in that petition unchastity of the petitioner was alleged by the Opp. Party and she wanted to rely on that document. The Court having dealt with her document, it has failed to conside the same.
7. In 1987 Cri.L.J. 1815, Girishchandra v. Sushilabai), it has been held that Section 125 is designed to prevent vagrancy and destitution and provides a summary and speedy remedy to get maintenance. Thus it has a social purpose to fulfil and in arriving at any finding in relation to an application thereunder, the Courts must look to the substance rather than to the form, must avoid strict technicalities of pleading and proof and must make a realistic approach to the material on record so that the purpose aforesaid is not frustrated.
8. I find that in paragraph 3 of the petitioner the Opp. Party has relied on the facts of unchastity of wife and in paragraph 6, thereof, he has reiterated the fact that she is living separately and leading an adulterous life. The effect of this is that if this fact is not proved then the wife gets justification for living separate from the husband and also gets grounds for claiming maintenance in that case. They have not been considered and decided by the Family Court.
9. In view of discussions in the foregoing paragraphs, the impugned order dated 6.5.1993 passed by the Family Court, Cuttack, in Criminal Proceeding No. 40 of 1991 is set aside and the matter is remanded to the Family Court, Cuttack, for giving a decision afresh after considering the pleadings of the parities in O.S. No. 18 of 1973 and giving opportunity to the parties to substantiate their respective allegations made therein. The parties are directed to appear before the Family Court, Cuttack, on the 5th of October, 1994. No further notice need be given to them. Since the matter is a very old one, it is directed that the proceeding be taken up from day to day and be decided within three months from today.