In
case
of
Vanamala
(Smt.)
v.
H.M.
Ranganatha
Bhatta2, the provision contained in Section 125 of the
Cr.P.C. came to be considered and their Lordships of
the Supreme Court has held that the divorced wife by
mutual consent who has not remarried is entitled for
maintenance and cannot be debarred by invoking Section
125(4) of the Cr.P.C.
and observed as under:-
“3.........On a plain reading of this Section
it seems fairly clear that the expression
'wife' in the said sub-section does not have
the extended meaning of including a woman who
has been divorced. This is for the obvious
reason that unless there is relationship of
husband and wife there can be no question of a
divorcee woman living in adultery or without
sufficient reason refusing to live with her
husband. After divorce where is the occasion
for the woman to live with her husband?
Similarly there would be no question of the
husband and wife living separately by mutual
consent because after divorce there is no need
for consent to live separately. In the
context, therefore, sub-section (4) of Section
125 does not apply to the case of a woman who
has been divorced or who has obtained a decree
for divorce. In our view, therefore, this
contention is not well founded.”
HIGH COURT OF CHHATTISGARH AT BILASPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL.
CRIMINAL REVISION NO. 399/2008
Rishikesh
Singh
Singh
alias
T.R.
VERSUS
Kiran Gautam
(CRIMINAL REVISION UNDER SECTION 19(4) OF THE FAMILY
COURTS ACT, 1984)
(Passed on 05/09/2014)
1.
In both these criminal revisions, common question
of law and fact is involved, as such, they are heard
analogously
order.
and
stand
disposed
of
by
this
common
2
2.
The essential facts required to be noticed for
judging the correctness of the impugned order are as
under:-
2.1 The non-applicant/wife filed an application
under
Section
125
of
the
Code
of
Criminal
Procedure, 1973 (‘Cr.P.C.’ for brevity) stating
inter alia that she was married to the applicant.
She further pleaded that immediately after the
marriage,
applicant
and
his
family
members
treated her with cruelty and demanded dowry. It
was further pleaded that she was forced to live
separately
on
account
of
valid
and
sufficient
cause, as such, she is living with her parents.
She further pleaded that a decree for divorce has
been
granted
Additional
on
25/02/2002
District
Judge,
by
the
Durg.
It
Third
was
also
pleaded that though, she is practicing Advocate
duly
registered
unable
to
applicant
in
the
maintain
is
working
Technician in Bhilai
Rs.18,000/- per month
year
2004,
herself,
on
the
Steel
and
but
she
whereas,
post
of
Plant,
prayer
was
is
the
Senior
getting
made
for
grant of maintenance to the extent of Rs.5,000/-
per month.
2.2 The present applicant/husband filed his reply
admitting
the
fact
of
marriage
with
the
non-
3
applicant and pleaded that the decree for divorce
on
mutual
Marriage
consent
Act,
competent
under
1955
Court
Section
has
on
been
13-B
of
granted
25/02/2002,
Hindu
by
and
the
further
pleaded that the dowry case lodged under Section
498-A
of
brevity)
the
has
Indian
also
Penal
been
Code
closed
(“IPC”
and
the
for
non-
applicant being an Advocate duly registered has
sufficient
means
to
maintain
herself,
and
as
such, application for maintenance deserves to be
rejected.
2.3 During
the
course
not
of
applicant/wife did
file
whereas, the applicant/husband
documents i.e. Exhibit
hearing,
D/1
support of his case, out of
to
any
non-
document,
brought
Exhibit
nine
D/9
in
which Exhibit D/1 is
a judgment and decree passed in Civil Suit No.
89-A/2000, granting decree on the basis of mutual
consent under Section 13-B of the Hindu Marriage
Act, 1955.
2.4 The Family Court, by its impugned order dated
03/05/2008, partly
maintenance granted the
finding
inter alia
application
that
the
for
non-
applicant/wife has valid and sufficient cause to
live
separately
and
the
decree
for
divorce
granted on the basis of mutual consent will not
4
disentitle
the
maintenance
from
non-applicant/wife
former
husband
to
i.e.
get
applicant
and granted maintenance allowance of Rs.2,000/-
per month.
3.
Questioning
the
legality
and
validity
of
the
impugned order of Family Court, applicant/husband has
filed criminal revision No. 399/2008 for setting aside
the
order
granting
applicant/wife
420/2008
has
seeking
allowance.
Both
maintenance,
filed
criminal
enhancement
the
whereas,
criminal
of
revision
the
revisions
non-
No.
maintenance
have
been
clubbed together and heard analogously.
4.
Mr.
B.P.
Sharma
and
Mr.
Vivek
Chopda,
learned
counsel appearing on behalf of the applicant/husband-
Rishikesh Singh alias T.R. Singh, would submit that
once the decree for divorce is granted under Section
13-B of the Hindu Marriage Act, 1955 on the basis of
mutual consent, then
by virtue of provision contained
in Section 125(4) of the Cr.P.C., as they are living
separately by mutual consent, the non-applicant/wife
is not entitled for maintenance. They would further
submit
that
the
non-applicant/wife
being
the
Practicing Lawyer has a sufficient means to maintain
herself,
therefore,
the
deserves to be set aside.
order
granting
maintenance
5
5.
On the other hand, Mr. Awadh Tripathi and Mr.
Vivek Tripathi, learned counsel appearing on behalf of
the
non-applicant/wife-
Kiran
Goutam,
would
support
the impugned order and submit that the Family Court
has
rightly
granted
maintenance
to
the
non-
applicant/wife overruling the objections raised by the
applicant/husband. They would further submit that the
amount of maintenance deserves to be enhanced in view
of the income of the applicant/husband as said amount
of
maintenance
granted
to
her
is
not
just
and
reasonable.
6.
I have heard learned counsel appearing for the
parties, considered their rival submissions and also
perused the record of the Family Court with utmost
circumspection.
7.
The short question for consideration is whether
the decree for divorce granted on the basis of mutual
consent under Section 13-B of the Hindu Marriage Act,
1955 would dis-entitle the non-applicant/wife to get
maintenance
in
view
of
provision
contained
in
sub-
section (4) of Section 125 of the Cr.P.C.
8. In order to appreciate the point raised, it would
be profitable
to
quote
Section
125(1)(a)
Explanation (b) of the Cr.P.C., which runs thus:-
“125. Order for maintenance of wives, children
and
6
and parents.-(1) If
any
person
having
sufficient means neglects or refuses to
maintain-
(a) his wife, unable to maintain herself,
or
(b) *
*
*
*
(c) *
*
*
*
(d) *
*
*
*
Explanation.-
For
the
Chapter,-
(a) *
*
*
(b)
"wife" includes
divorced by, or has
from, her husband and
9.
purposes
of
this
*
a woman who has been
obtained a divorce
has not remarried.”
Section 125 of the Cr.P.C. makes provision for
grant of maintenance to wife, children and parents.
Sub-section (1) of Section 125 of the Cr.P.C. inter
alia
provides
that
if
any
person
having
sufficient
means neglects or refuses to maintain his wife unable
to maintain 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, as such, Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from
time to time direct. Clause (b) of the Explanation to
the
sub-section
include
obtained
a
woman
a
defines the
who has been
from, her
divorce
expression
divorced
husband
'wife'
by,
and
to
or has
has not
remarried.
10.
In case of Rohtash Singh v. Smt. Ramendri and
other1, their Lordships of Supreme Court has held that
1
AIR 2000 SC 952
7
by virtue of explanation attached to sub-Section (1)
of
Section
125
Cr.P.C.,
a
woman
divorced
by
her
husband on account of a decree passed by the Family
Court under the Hindu Marriage Act, 1955 continues to
enjoy the status of a wife for the limited purpose of
claiming maintenance from her ex-husband and held as
under:-
“9A. Claim for maintenance under the first
part of Section 125, Cr.P.C. is based on the
subsistence of marriage while claim for
maintenance of a divorced wife if based on the
foundation provided by Explanation (b) to sub-
Section(1) of Section 125, CR.P.C.
If the
divorced wife is unable to maintain herself
and if she has not remarried, she will be
entitled to Maintenance Allowance.
The
Calcutta High Court had an occasion to
consider an identical situation where the
husband had obtained divorce on the ground of
desertion by wife but she was held entitled to
Maintenance Allowance as a divorced wife under
Section 125, Cr.P.C. and the fact that she had
deserted her husband and on that basis a
decree for divorce was passed against her was
not treated as a bar to her claim for
maintenance as a divorced wife. (See: Sukumar
Dhibar V. Smt. Anjali Dasi, 1983 Cri LJ 36
(Cal)). The Allahabad High Court also, in the
instant case, has taken a similar view.
We
approve these decisions as they represent the
correct legal position.
10. Learned counsel for the petitioner then
submitted that once a decree for divorce was
passed against the respondent and marital
relations between the petitioner and the
respondent came to an end, the mutual rights,
duties and obligations should also come to an
end.
He pleaded that in this situation, the
obligation of the petitioner to maintain a
woman with whom all relations came to an end
should also be treated to have come to an end.
This plea, as we have already indicated above,
can not be accepted as a woman has two
distinct rights for maintenance.
As a wife,
8
she is entitled to maintenance unless she
suffers form any of the disabilities indicated
in Section 125(4).In another capacity, namely,
as a divorced woman, she is again entitled to
claim maintenance from the person of whom she
was once the wife.
A woman after divorce
becomes a destitute. If she can not maintain
herself or remains unmarried, the man who was,
once, her husband continues to be under a
statutory duty and obligation to provide
maintenance to her.”
11.
Thus
by
virtue
of
Explanation
(b)
of
Section
125(1) of the Cr.P.C., divorced wife is entitled for
maintenance, if she is unable to maintain herself.
12.
Section 125(4) of the Cr.P.C. provides as under:-
“125(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.”
13.
A careful and plain reading of the sub-section
(4) of Section 125 of the Cr.P.C. would show that in
order to invoke, this sub-section, the marriage must
be subsisting on the date of questioning the wife's
entitlement to get maintenance as question of living
separately
by
mutual
consent
would
arise
only
when
their marriage is subsisting and once the marital tie
is
dissolved
by
valid
decree
of
divorce,
the
relationship comes to an end and they are entitled to
live separately as per decree of divorce, and question
of living separately by mutual consent does not arise.
9
14.
In
case
of
Vanamala
(Smt.)
v.
H.M.
Ranganatha
Bhatta2, the provision contained in Section 125 of the
Cr.P.C. came to be considered and their Lordships of
the Supreme Court has held that the divorced wife by
mutual consent who has not remarried is entitled for
maintenance and cannot be debarred by invoking Section
125(4) of the Cr.P.C.
and observed as under:-
“3.........On a plain reading of this Section
it seems fairly clear that the expression
'wife' in the said sub-section does not have
the extended meaning of including a woman who
has been divorced. This is for the obvious
reason that unless there is relationship of
husband and wife there can be no question of a
divorcee woman living in adultery or without
sufficient reason refusing to live with her
husband. After divorce where is the occasion
for the woman to live with her husband?
Similarly there would be no question of the
husband and wife living separately by mutual
consent because after divorce there is no need
for consent to live separately. In the
context, therefore, sub-section (4) of Section
125 does not apply to the case of a woman who
has been divorced or who has obtained a decree
for divorce. In our view, therefore, this
contention is not well founded.”
15.
Likewise, in case of Gurmit Kaur v. Surjit Singh
alias Jeet Singh3, the Supreme Court has clearly held
that
the
expression
‘they
are
living
separately
by
mutual consent’ used in Section 125(4) of the Cr.P.C.
would be attracted during the subsistence of marriage
by observing as under:-
“6. The concept of living separately by
mutual consent arises so long as the marriage
2
3
(1995) 5 SCC 299
(1996) 1 SCC 39
10
subsists and the parties agree to live
separately by consent. In other words, during
the subsistence of the marriage, if the
parties agree to live separately by mutual
consent, no party is entitled to lay and claim
for maintenance from the other party.
7. In view of the divorce agreement referred
to hereinabove, the marital relations have
come to a terminus. By virtue thereof, the
respondent had already contracted the second
marriage. In other words, the first marriage
has been put to an end. The appellant thereby
became entitled to claim maintenance and will
continue to do so, so long as she remains
unmarried and she is unable to maintain
herself.”
16.
Testing the present factual matrix on the anvil
of aforesaid enunciation of law it would appear that
the
non-applicant
was
legally
wedded
wife
of
the
applicant prior to decree of divorce on 25/02/2002. It
is also not in dispute that the non-applicant has not
remarried after passing the decree of divorce under
Section 13-B of the Hindu Marriage Act, 1955. Thus,
non-applicant/wife
being
divorced
wife
of
the
applicant-Rishikesh Singh alias T.R. Singh is entitled
for
maintenance
Explanation
(b)
under
of
the
Section
125(1)
Cr.P.C.
till
read
she
is
with
not
remarried and Section 125(4) of the Cr.P.C. would not
be attracted as stated above. Thus, the Family Court
is absolutely justified in granting maintenance to the
non-applicant/wife.
17.
Mr.
Sharma,
applicant/husband
learned
would
counsel
submit
that
for the
the non-
11
applicant/wife is practicing Advocate and is able to
maintain herself and therefore, she is not entitled
for
maintenance.
The
fact
remains
that
non-
applicant/wife is junior Advocate and enrolled as an
Advocate, only in the year 2004 and she is unable to
maintain herself as such it cannot be held that she is
not entitled for maintenance.
18.
Now, coming to the quantum of maintenance, which
the wife/non-applicant is entitled to; she has been
granted maintenance to the extent of Rs.2,000/- per
month. The fact remains that the applicant/husband is
working as Senior Technician in Bhilai Steel Plant and
getting
Rs.18,000/-
maintenance
per
granted
to
month
the
and
amount
of
wife/non-applicant
Rs.2,000/- per month cannot be said to be fair and
reasonable amount of maintenance to a wife, who is an
Advocate and unable to maintain herself. Taking into
consideration rise in the cost of living, price index
and
basic
etc.,
it
maintenance
needs
of
would
amount
human
be
being
appropriate
from
i.e.
to
Rs.2,000/-
food,
shelter
enhance
per
month
the
to
Rs.3,000/- per month and further considering the facts
and circumstances of the case the non-applicant/wife
would be entitled the enhanced amount of maintenance
w.e.f. 01/01/2011. Arrears of maintenance amount be
paid to the non-applicant/wife within a period of 45
days from today.
12
19.
Consequently, the criminal revision No. 399/2008
filed by the husband fails and is hereby dismissed,
whereas, Criminal Revision No. 420/2008 filed by the
wife is allowed to the extent indicated herein above.
JUDGE
Tiwari
13
HEAD-NOTE
Divorce by mutual consent under Section 13-B of
the Hindu Marriage Act, 1955 is no ground to deny
maintenance to a wife.
/kkjk 13&[k] fgUnw fookg vf/kfu;e] 1955 ds rgr ijLij lgefr }zkjk fookg foPNsn]
iRuh ds Hkj.k&iks"k.k ls badkj gsrq dkasbZ vk/kkj ugh gS A
(By Order)
(Yogesh Tiwari)
(Private Secretary)
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