V.H. Bhairavia, J.
1. This Criminal Revision Application has been filed by the petitioner (Orig. opponent-husband) challenging the judgment and order dated 29.3.1983 passed by the learned Metropolitan Magistrate, Court No. 3, Ahmedabad below application of the opponent dated 10.8.1983 in Misc. Cri. Application No. 150 of 1983. By that application, the petitioner-opponent took preliminary objection regarding the maintainability of Misc. Cri. Application No. 150 of 1983 filed by the respondent-Wife under Section 125 of the Cr. P. Code for getting maintenance from the petitioner on the ground that there is bar of res judicata in view of the order passed by the Civil Court against the respondent-Wife in Civil Suit No. 1173 of 1977 and H.M.P. Suit No. 298 of 1980 wherein it has been held by the Civil Court that the petitioner-Husband has not deserted the respondent-Wife and she was not entitled to the decree of restitution of conjugal rights and suit was dismissed. Said judgment and order of the Civil Court was confirmed by the High Court in appeal being First Appeal No. 33 of 1979.
2. It has been submitted by the learned Counsel appearing on behalf of the petitioner-Husband that the application under Section 125 of the Cr. P. Code filed by the respondent-Wife for getting maintenance amount from the petitioner-Husband, is not maintainable in view of the fact that the petitioner has not deserted or neglected to maintain respondent-Wife. In support of this submission, he has relied on the judgment and orders passed by the Civil Courts in H.M.P. Suit No. 298 of 1980 and Civil Suit No. 1173 of 1977 wherein it has been in terms, held that the petitioner has not deserted and neglected the respondent-Wife and therefore, respondent-Wife was not entitled to the decree for restitution of conjugal rights. He has further submitted that the said findings are confirmed by the High Court. He has further submitted that these are the concurrent findings of the Civil Courts confirmed by the High Court, they are binding on the Criminal Court for the purpose of awarding maintenance on the application for maintenance under Section 125 of the Cri. Pro. Code.
3. For appreciating the submissions made by the learned Counsel for the petitioner, it would be necessary to refer to the provisions of Section 125 of Cr. P. Code. Section 125 of Cr. P. Code reads as under:'
'Order for Maintenance of Wives, Children and Parents :
(1) If any person having sufficient means neglects or refuses to maintain :
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or 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 or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Explanation-For the purposes of this Chapter,
(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.
(2) Such allowance shall be payable, from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, imprisonment for a term which may extend to one month or until payment if sooner made :
Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it becomes due :
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, if shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if without any sufficient reason, she refuses the 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.'
4. The issues framed and decided by the City Civil Court in the above stated civil proceedings are as under :
Issue No. 2 :
Whether the plaintiff proves that I he defendant has deserted her since June, 1976 or that he treated her with cruelty (In HMP Suit No. 298 of 1980).Issue No. 3 :
Is it proved that the respondent has without reasonable excuse withdrawn from the society of the applicant as alleged by the applicant ?
(In Civil Suit No. 1173 of 1977).
5. Both these issues were answered in the negative by the Civil Courts and this finding has been confirmed by the High Court in First Appeal No. 33 of 1979.
6. In view of above position, in my view, there is much substance in the submissions of the learned Counsel for the petitioner with regard to the non-maintainability of the application for maintenance under Section 125 of the Cr. P. Code and other submissions as stated above. Once, there is a clear finding of the Civil Court on the point of desertion, neglect and cruelty which is answered in the negative, in my view, it is not open for the Criminal Court to give different finding on the same issue, the findings recorded by the Civil Court are binding on the Criminal Court for the purpose of deciding application for maintenance under Section 125 of the Cr. P. Code. The learned Magistrate, therefore, clearly erred in rejecting the application given by the petitioner herein raising preliminary objections against the application maintenance Under Section 125 of the Cr. P. Code.
7. It is to be noted that the petitioner is about 70 years old and living in a very miserable condition having no means for his own maintenance. It has also been pointed out before the Court that the respondent-Wife is staying in USA with her two sons who are staying in USA and have settled there. Therefore, it can safely be presumed that she is not left without any means and she is living very peacefully in USA. In my view, the points raised in the application for maintenance by the respondent-Wife are merely academic. No meaningful purpose would be served in the directing the petitioner-Husband, who is in India and living very miserable life, to a wife who is staying in USA with her two sons who have settled there, and it would be an abuse of process of law in continuing such criminal proceedings in the Court of Law. Of course, it is the moral as well as statutory liability of the husband to maintain his wife and wife is entitled to the maintenance in the event of her desertion or neglect under Section 125 of the Cr. P. Code. However, in me instant case, in view of the concurrent findings of the Civil Courts on the point of desertion and cruelty answered in the negative and confirmed by the High Court, it is not proved that the petitioner-Husband has deserted and neglected the respondent-Wife, and therefore, the respondent-Wife is not entitled to any maintenance. In my view, the learned Magistrate ought to have considered this aspect of the matter and ought to have granted application of the petitioner-Husband raising preliminary objection regarding maintainability of the application Under Section 125 of the Cr. P. Code. Acting contrary would clearly be illegal. In my view the learned Magistrate has committed an error in not granting said application filed by the petitioner-Husband and hence the order passed by the learned Magistrate rejecting the application filed by the petitioner requires to be quashed and sec aside and this Cri. Rev. Application requires to be allowed.
8. Criminal Revision Application is allowed. The judgment and order dated 23-9-1983 passed by the learned Metropolitan Magistrate, Court No. 3, Ahmedabad in Misc. Cri. Appli. No. 150 of 1985 below application filed by the petitioner-Husband on 10-8-1983 rejecting the said application is hereby quashed and set aside, Said application is hereby allowed. Rule made absolute accordingly.