Bakhshish Singh vs Harjit Kaur

S.S. Dewan, J.—The short question that falls for decision in this revision petition is ''whether the fact that the respondent was living separately from the petitioner in terms of this stipulations contained in the deed evidencing dissolution of their marriage, would constitute at a bar u/s 125 (4) of the Code of Criminal Procedure (for short, the Code) to her claim for maintenance u/s 125 (1) of the Code.''

At the very outset I would wish to record that for the detailed reasons stated hereinafter, the answer to the aforesaid question has to be rendered in the negative because of the massive weight of precedents, the clear and the specific provision of S. 125 (1) of the Code and upon larger principle. The view I am inclined to take has the support of a Division Bench decision of Allahabad High Court in Prakash Chandra Verma v. Praksashwati alias Krishna Devi 1983 Hindu Law Reporter 613 and a single Bench decision of this Court in Balbir Singh v. Shmt Cahhno alias Jagir Kaur 1982 Marriage Law Journal 265.

A short narration of the facts is necessary to explore the submmision made on behalf of the petitioner. Harjit Kaur respondent is the wife of the petitioner. She moved the Magistrate having jurisdiction over the subject matter for grant of maintenance under S.125 of the Code. The Court by its order dated August 20, 1978, awarded maintenance of Rs. 100/ per mensem but the order was made exparte. The petitioner filed a petition u/s 9 of the Hindu Marriage Act for the restitution of conjugal rights against Harjit Kaur which was decided in his favour on March 12, 1980. It is said that on June 7, 1980 during the pendency of the application under S. 126 of the code, both the parties entered into a settlement between themselves for putting at naught their marriage permitting each other to go of his/her own will. In this connection, both the parties made their statements in the Court of the Magistrate at Pathankot on June 7,1980 and on the basis of those statements, the Magistrate took the view that their statements in the Court and the divorce deed evidenced the mutual consent to live separately and therefore, sub.S. (4) of S. 125 of the Code was separately attracted to the facts of the case.

The learned counsel for the petitioner has pointed out that a divorced wife is a person living separately by mutual consent and is, therefore, not entitled to any maintenance from her former husband. the learned counsel submits that tin view of the terms in the Deed of Divorce and the statements of the parties marked ''A'' and ''B'' the respondent has waived her right to maintenance. I reget my inability to accept this contention. The legislature in its wisdom conferred that right upon the ''wife''(which expression includes under the new Case a divorced wife) to claim maintenance from her former husband notwithstanding the dissolution of the marriage. Therefore, there was no question of waiver of any right which was vested in the wife. The question of waiver can arias only when a person consciously abandons or waives a right to which he or she in law was entitled to. In the circumstance it cannot be validly contended that the wife had waived any right. Under Section 125 of the Code, a divorced wife is entitled to claim maintenance.

In fact, what the wife did by her petition from which the present proceedings arose.

Subs. (4) of S. 125 reads as follow:

"No wife shall be entitled to receive an allowance from her husband under this section is she is living in adultery, or if, without any sufficient reason, she refuse to live with her husband, or if they are living separately by mutual consent."

In this context, it is relevant to consider Explanation (b) to S. 125 (1) of the Code, by which the term ''wife'' has been so expanded as to include within its fold a woman who has been divorced by or has obtained a divorce from her husband who had not remarried. A wife, unable to maintain her, is entitled to an order for maintenance on proof of such neglect or refusal on the part of the husband in terms of subS. (1) of S. 125 of the Code; and in the light of Explanation (b) to that sub section a divorced woman also would be eligible for the benefit if the conditions mentioned therein are satisfied.

The further question that rises for consideration is whether, if the divorced woman and her erstwhile husband are living separately by mutual consent, that would constitute a bar under subS. (4) of S. 125 of the Code to the claim under subS.(1) for maintenance. We have to examine whether the order of the Magistrate that inasmuch as in consequence of the dissolution of marriage evidenced by the divorce deed and their statements in the Court maked ''A'' and ''B'' the respondent and her erstwhile husband are staying separately by mutual consent, the bar under subS. (4) of S. 125 of the Code comes into play, is correct. The learned Magistrate appears to hold the view that in th3e casse of a divorced woman, the bar would operate under subS. (4) if they are living separately by mutual consent. In other words, according to the learned Magistrate, a woman who obtained divorce through mutual consent, which in turn entitles her to live separately from her erstwhile husband, will not fall within the term wife even when the expanded meaning to that term as given by Explanation (b) to sub.S. (1) of S. 125 of the Code is applied to the case. The reason given for this interpretation is that it is only to case where a woman who has been divorced by or has obtained divorce from her husband the Explanation (b) to subS. (1) of S. 125 would apply and the Explanation would exclude cases in which the woman obtained divorce by mutual consent which in turn enables her to live separately from her erstwhile husband. In my view,t he Parliament''s intention was to extende the benefit of the Explanation to divorced woman without making any distinction between the method of forum through which the divorce came into existence. Any narrow construction placed on the scope of the Explanation would defeat the purpose of the provision to a great extent. A divorced woman is divorced woman whether it is secured thought Court or by deed as per agreement. A divorce by agreement also implies divorce obtained from or by a spouse to satisfy the requirement of Explanation (b) to subS. (1) of S. 125 Clause (c) of subS. (3) of S.127 which provides that when any order has been made under S. 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate may if he is satisfied that "the woman has obtained a divorce from her husband that she had voluntarily surrendered her right to maintenance after her divorce, cancel the order" allowing maintenance to her. This is an indication that a woman who has obtained a divorce would continue to be entitled to receive maintenance until she has rendered herself disentitled t it by a conscious act of waiver in that behalf. If the position of the woman who has obtained a divorce is this, that of the woman who obtained it by metal consent can not be anything worse. SubS. (4) of S. 125 makes no reference to a divorced woman. When the Parliament used the expression "living separately by mutual consent" in subS. (4) of S. 125 as in the case of living in adultery, it has reference only to case of such "living separately by mutual consent" of a man and a woman between whom material relationship subsisted during the material time. I am, therefore, of the opinion that the learned Magistrate was not correct in taking the view that because there was dissolution of marriage between the petitioner and the respondent, the petitionerhusband was absolved from the liability to pay maintenance to the respondent by reason of the provision of S. 125 (4) of the Code and the learned Sessions Judge was justified in reversing this finding.

For these reasons there is no merit in the revision petition and the same is accordingly dismissed.