Hari Singh and Another vs Smt. Gulab Devi and Another

Jagdish Sharan Verma, C.J.—Both these appeals are u/s 19 of the Family Courts Act, 1984 against the award of maintenance to a divorced wife u/s 125 of the Code of Criminal Procedure, 1973. The only controversy relates to the tenability of the claim for maintenance u/s 125 Cr. P.C. The material facts are only a few and are common in both the cases.

The two appellants are brothers who were married to two sisters in 1967 and they lived together till 1976. Each couple has a child born during this period. In each case the wife after leaving the matrimonial home filed a petition u/s 10 of the Hindu Marriage Act which was dismissed. Thereafter, in 1979 the husband in each case filed a petition for divorce u/s 13 of the Hindu Marriage Act on the ground of wife''s desertion. During the pendency of the divorce proceedings maintenance pendente lite was awarded to wife in each case and ultimately in 1981 a decree for divorce was passed on the ground of wife''s desertion. It may be mentioned that no order for permanent alimony or maintenance u/s 25 of the Hindu Marriage Act was made while disposing of the divorce petition, nor any such order under that provision has been made so far. The husband has re-married after getting the decree for divorce. The wife in each case filed an application on March 17, 1986 for grant of maintenance u/s 125 Cr. P.C. which was allowed by the Family Court. In Misc. Appeal No. 289 of 1988 the wife has been awarded Rs. 200/- per month as the maintenance from the date of application, while in Misc. Appeal No. 62 of 1988 the wife has been granted maintenance @ Rs. 250/- per month from the same date. In Misc. Appeal No. 289 of 1988, Rs. 100/- has also been awarded to the child, but the same has not been assailed. The challenge in both these appeal is only to the grant of maintenance to the divorced wife u/s 125 Cr. P.C.

The main argument in support of both these appeals is that the decree for divorce having been granted to the husband on the ground of wife''s desertion, Sub-section (4) of Section 125 forbids the grant of any maintenance u/s 125 Cr. P.C. since the wife had admittedly refused to live with her husband without any sufficient reason. This argument requires the construction of Sub-section (4) of Section 125 Cr. P.C. which reads as under:

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 to live with her husband, or if they are living separately by mutual consent.

Sub-section (1) of Section 125 gives the power to award maintenance to the persons specified therein including the "wife" and Clause (b) of the Explanation therein defines "wife" to include a woman who has been divorced by or has obtained divorce from her husband and has not re-married. There is no dispute that this definition of "wife" includes within its ambit the respondent in both these appeals since each of these women though divorced by the appellant has not herself remarried.

The question now is whether inspite of the entitlement for maintenance under Sub-section (1) of Section 125 she becomes disentitled to it by virtue of Sub-section (4). In our opinion, harmonious construction of Sub-section (4) with the definition of "wife" given in Clause (b) of Explanation in Sub-section (1) and the context in which Sub-section (4) appears clearly indicate that Sub-section (4) is attracted only when the wife is ordinarily bound to live with her husband at the time of claiming maintenance and yet she refuses to live with him without any sufficient reason. In our opinion, Sub-section (4) cannot apply to a situation like the present where there is no obligation on either of the divorced spouses to live with the other as result of the decree for divorce granted prior to the making of the application for grant of maintenance. The contrary view suggested on behalf of the appellants would require the divorced wife to live with the divorced husband after the decree for divorce has been passed in order to enable her to get maintenance u/s 125, Cr. P.C. which could obviously not be the intention of the legislature. The fact that a divorced wife is entitled to maintenance u/s 125, Cr. P.C. is beyond controversy from the definition of "wife" given in Clause (b) of Explanation in Sub-section (1) of Section 125. That being so Sub-section (4) must be construed to be applicable only to a wife whose marriage is subsisting with her husband obliging her to ordinarily live with her husband and not to a divorced wife who is not under any such obligation. The contrary view apart from being unwarranted would also be against public policy since that would result in requiring a woman to live with a man who has ceased to be her husband. It is, therefore, clear that the requirement of living with her husband contained in Sub-section (4) applies to the wife only during the subsistence of the marriage and not after the relationship ceases as a result of divorce.

Sub-section (5) of Section 125, Cr. P.C. which enables the court to cancel the order made earlier for maintenance in the same situations which are contained in Sub-section (4) also suggests that Sub-section (4) and (5) apply when the marriage is subsisting. This is evident also from the other two situations mentioned in these Sub-sections. Section 127 providing for alteration of allowance on proof of change in the circumstancer and as a consequence of any decision of a competent civil court or a divorce or its consequences further supports the construction we have made of Sub-section (4) of Section 125.

Section 25 of the Hindu Marriage Act provides for grant of permanent alimony in case of the Hindus. Admittedly no such order has been made in favour of the divorced wife in both these cases. It is clear that on an order made u/s 25 of the Hindu Marriage Act for permanent alimony the same can be taken into account for modification or cancellation of the order made u/s 125 and resort can be had to Section 127, Cr. P.C.

The object of Section 125, Cr. P.C. is primarily to prevent vagrancy or the consequences thereof by making an order for maintenance there under straightaway on the conditions specified being satisfied. As earlier pointed out a divorced wife is included within the definition of "wife" for the purpose of Section 125, Cr. P.C. Sub-section (4) of Section 125 is not attracted in the present situation for the reason already given. Accordingly, grant of the decree for divorce on the ground of desertion by the wife is immaterial since Sub-section (4) is not attracted to a case of divorced wife. The main contention urged in support of these appeals must, therefore, fail.

We may refer to three S.B. decisions of Calcutta, Kerala and Madhya Pradesh High Courts in which a similar view has been taken with regard to the meaning of Sub-section (4) of Section 125, Cr. P.C. Biswanath Saha v. Sikha Saha (1986) 2 DMC 321; Mangilal v. Gitabai 1988(1) Cri 600; and Sadasivan Pillai v. Vijaylakshmi (1987(2) DMC 203. No decision taking a contrary view has been cited. Reliance was placed on behalf of the appellants on David Daniel v. Mrs. Chinnamma Daniel 1973 Cr. L.J. 91 The case is clearly distinguishable since the refusal of the wife to live with her husband in that case was during the subsistence of the marriage and even after a decree for restitution of conjugal rights had teen passed. That decision has, therefore, no application to the case of a divorced wife.

It was also urged on behalf of the appellants that the divorced wife was not entitled to maintenance since she was at fault which has resulted in a decree for divorce being passed on the ground of her desertion. We are unable to accept this contention for the purpose of grant of maintenance u/s 125, Cr. P.C. Undoubtedly such a divorced wife is entitled even to permanent alimony u/s 25 of the Hindu Marriage Act. That being so there is no reason why she can be deprived of the right to get maintenance u/s 125 Cr. P.C.

Lastly, it was urged that in the wife''s petition filed u/s 10 of the Hindu Marriage Act no interim maintenance was granted and, therefore, the principle contained in Sub-section (2) of Section 127, Cr. P.C. disentitled her to maintenance u/s 125, Cr. P.C. It is sufficient to say that Sub-section (2) of Section 127 has no application in the present situation. That provision applies only for cancellation or variation of the order of maintenance in consequence of any decision of a competent civil court after the maintenance has been granted. More over, maintenance pendente lite was granted in the divorce proceedings initiated by the husband. This argument has no merit and is rejected.

Consequently, these appeals fail and are dismissed with cost. Counsel''s fee Rs. 250/- in each case, if certified.