LexMAJOR ASHOK KUMAR SINGH versus VITH ADDL. SESSIONS JUDGE, VARANASI AND ORS.
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A B c D E F MAJOR ASHOK KUMAR SINGH v. VJTH ADDL. SESSIONS JUDGE, VARANASI AND ORS. SEPTEMBER 6, 1995 [K. RAMASWAMY AND B.L. HANSARIA, JJ.] Code of Oiminal Procedure, 1973 : S.12~Maiiitenance-Wife's petition fo~Husband impotent and neglecting the wife-Wife unable to maintain herself-Held, husband's failure to pe1f onn sexual obligation would be perpetual agony for wife to continue to live in peace in conjugal lwme--Ouely being a ground for divorce or judicial separation, wife would be justified to live separately and entitled to main- tenance. The appellant and respondent No. 2 were husband and wife. The marriage was solemnised in 1981. In 1987, the respondent filed a petition under s.125 of the Code of Criminal procedure 1973 claiming maintenance and separate residence from the appellant on the ground that he was impotent and neglected her. The Magistrate.awarded a sum of Rs. 500 per month from the date of filing of the petition. The appellant unsuccessfully challenged the order in a revision before the Sessions Judge and thereafter in a writ petition before the High Court. Aggrieved, the appellant flied the appeal by special leave. Dismissing the appeal, this Court HELD : 1.1. When the husband is unable to perform sexual obliga- tion, which is one of the important factors to cement bondage of affection and cordial relationship in marital home, it would be perpetual agony for the wife to continue to live in peace in the conjugal home. Cruelty is a ground for divorce or judicial separation in civil law. Under these cir- G cumstances, the wife would be well justified to live separately from the husband and at the same time keep maintaining married status. [368-A-B] Sirajmohamedkhan Janmohanadkhan v. Hafizunnisa Vasinkhan and Anr., [1982) 1 SCR 695, relied on. H 1.2. Apart from other problems, the main problem is the failure on 364 AK SINGH v. VITH ADDL. SESSIONS JUDGE 365 appellant's part of sexual life. The respondent had not immediately rushed A to severe her marital relations with the appellant. She had sufficiently waited for long time to see whether there would be any improvement in the potency of the appellant. Having found no hope, she chose to live separate- ly from the appellant. Therefore, it could safely be concluded that the respondent having tried all means to sustain the marital relations but having found that it was impossible for the appellant to gain potency, she had chosen to live apart from the appellant. Therefore, there was sufficient ground for the wife to live separately. [368-D-E] 1.3. The courts below found as a fact that the appellant was impotent B and he was not capable of giving sexual satisfaction to the respondent; in C consequence it amounted to cruelty and that, therefore, the respondent was entitled to live separately from the appellant. Since she was unable to maintain herself, she was entitled to seek maintenance from the appellant. The view taken by the High Court is well justified. [366-G-H; 367-A] 1.4. The appellant is an Army Officer and has sufficient means to D maintain his wife. The amount of Rs. 500 per month being the maximum provided under the Code, the Magistrate is well justified, under the circumstances, to award this meagre sum to the respondent towards her maintenance. [368-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8310 of E 1995. From the Judgment and Order dated 17.12.90 of the Allahabad High Court in C.M.W. ·No. 706 of 1990. S.C. Birla for the Appellant Yogesh Prasad, Ms. Rachna Gupta and P.K. Bajaj for the Respon- dents. The following Order of the Court was delivered : Leave granted. F G This appeal by special leave arises from the order of the Single Judge dated December 17, 1990 of the High Court of Allahabad made in Civil Misc. W.P. No. 706of199. The undisputed facts are that the appellant and H 366 SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R. A Mrs. Geeta, the respondent, are legally married couple. Their marriage was solemnized OJ) November 22, 1981. The respondent laid the proceedings under Section 125 of the Code of Criminal Procedure, 1973 )for short, 'the Code') on July 14, 1987 for maintenance on the ground that the appellant is impotent and he neglected her and that, therefore, she claimed main- B tenance for separate residence from the appellant. The learned magistrate awarded a sum of Rs. 500 per month w.e.f. the date of filing of the petition. On revision the Se
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