K. Savithriammal vs K.K. Balaguruvappa

Arunachalam, J.—The unsuccessful wife in M.C. No. 22 of 1987 on the file of the III Metropolitan Magistrate, G.T. Madras, is the

Petitioner. She filed before the enquiring Magistrate a petition u/s 125 of the Crl. P C. on 1-4-1987 claiming maintenance from, her husband, the

Respondent herein. The averments in the petition were that she married the Respondent in 1946, that she and her husband lived together till

December 1958, at No. 10, Ramanuja Koodam Street, Washermanpet, that two children were born out of the marriage, that from 1959 the

Respondent started living away from her and that in O P. No. 342 of 1960 she filed a petition for divorce from the Respondent. According to her,

she was duped by the Respondent and divorce order was obtained. Even though the City Civil Court awarded maintenance to her, the

Respondent did not care to pay the maintenance amount ordered. Therefore, it was her case that the Respondent has neglected her. She has also

stated in the petition that she has no means and the Respondent was a business man. A sum of Rs. 1,000 per month as maintenance was prayed

for.

In the counter filed before the enquiring Magistrate, the Respondent admitted the marriage and the birth of two children. He has stated that it

was the Petitioner who filed O P. No. 342 of l960 and obtained an ex parte order of divorce against him. He has also stated that in the same

petition she had prayed for maintenance which was also awarded. He admitted that from 1959, he and the Petitioner were living separately.

According to him, they have not even met after 1959 He has denied that the divorce order was passed because of the deceit practised by him on

the Petitioner. He has also stated that the Petitioner filed O.S. No. 7281 of 1983 on the file of the City Civil Court, to set aside the order in O P.

No. 342 of 1960 The said suit was dismissed and the appeal filed by the Petitioner in A.S. No. 119 of 1987, also faced the same fate. Later, the

Petitioner filed O.S. No. 7870 of 1983 on the file of the City Civil Court, against the Respondent praying for maintenance. Due to her negligence,

the suit was dismissed for default. The Petitioner filed a petition to restore the suit on file, and it has been ordered. Now, the proceedings in O.S.

No. 7870 of 1983. for maintenance against the Respondent, claimed by the Petitioner, are pending disposal. The maintenance ordered by the Civil

Court earlier was paid to the Petitioner. Now, the Petitioner is living with her son who is maintaining and taking care of her. The Petitioner is living

in the ancestral house of the Respondent along with her son and daughter-in-law. The Petitioner is leading a comfortable life, whereas the

Respondent does not have sufficient means and is being taken care of by his second wife. The petition claiming maintenance has to be dismissed.

Before the Magistrate, the Petitioner examined herself as P.W.1 and the Respondent examined himself as R.W.1. The Petitioner did not file any

documents while the civil litigation detailed earlier was placed on record by the Respondent by Exs R-1 to R.8.

The enquiring Magistrate was not prepared to accept the case of the Petitioner and found that the parties were living away from each other from

1959 and a divorce at the instance of the wife had been obtained as early as 13-10-1930. The enquiring Magistrate also relied on the judgment of

this Court in J Sampathkumar v. Subashini 1985 L.W. (Cri.) 224. wherein this Court has observed that for getting an order of maintenance u/s

125, Crl. P.C., one should show that the person bound to maintain, neglected or refused to maintain. It was not shown on the facts of that case

that the wife asked for any maintenance pendente lite during the matrimonial proceedings. Even prior to that, as in this case, the parties were living

separately. It was observed that it was the duty of the wife to ask the matrimonial court itself to grant maintenance along with the decree for

divorce and avail of the remedy u/s 25 of the Hindu Marriage Act, if thought fit, even subsequently.

Mr. R. Balasubramaniam. learned Counsel for the Petitioner contended that the enquiring Magistrate was in error in having applied the decision

of this Court in J. Sampathkumar v. Subashini 1985 L.W . (Cri.) 214. for, the facts herein do not attract the law laid down in the said case. He

also pointed out that wife has a right to claim maintenance from her husband after her divorce and S. 125 Cr. P.C. being a beneficial social

legislation, the Petitioner, a divorced wife will be held to be entitled to an award of maintenance from her husband.

Mr. V. Gopinathan, learned Counsel appearing for the Respondent, took me through the evidence and pointed out that the Petitioner has

admitted that she was living with her son, Guruvappa. at No. 10, Ramanujakoodam Street, Washermanpet. She has also admitted that the

premises is the ancestral property of the Respondent wherein he has a l/3rd share, and in the share belonging to the Respondent, she is living along

with her son. She has also admitted that the Respondent is not living in that house and he is living separately along with his second wife and their

children. Learned Counsel also brought to my notice, the evidence of the Respondent that apart from occupying the ancestral house of the

Respondent, the Petitioner is also receiving the monthly rental of Rs. 150/- from the tenant residing in the said premises. This part of the evidence

of the Respondent does not appear to have been seriously challenged. Learned Counsel for the Respondent also pointed out that in view of the

explanation to the word ""wife"" in S. 125, Cr. P.C. a distinction has to be made between a woman who has been divorced by her husband and a

woman who has obtained a divorce from her husband. According to the learned Counsel, the words ""has been"" used in the first part of Explanation

(b) mean, that it is of recent past, contra distinguished from the words ""has obtained a divorce from"" occurring In the latter-part of the Section''

denoting divorce after the coming into force of Code of Criminal Procedure (Act 2 of 1974).

Let us now consider the rival contentions put forth by either counsel. The last argument of the learned Counsel for the Respondent need not

detain us, for recently the Supreme Court in Secretary, Regional Transport Authority, Bangalore and Another Vs. D.P. Sharma and Others, . has

considered the impact of the words ""has been''"" in interpretation of statutes. The Supreme Court has observed:

in our opinion, whether the expression ''has been'' occurring in a provision of a statute denotes transaction prior to the enactment of the statute in

question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the

provision in which the said express on occurs or from the other provisions of the statute.

It is obvious that in the new Code of Criminal Procedure which came into force in 1974, a bold step in the direction of social rehabilitation of a

divorced wife had been taken note of and the expression ""wife"" was made to include a woman who has been divorced by or has obtained a

divorce from her husband and had not remarried. The intention of the Legislature is clear, and all that either the earlier part or the later part of

Explanation (b) indicates will be the fact of obtaining divorce, and nothing else. It cannot also be lost sight of that if the meaning sought to be given

by the learned Counsel for the Respondent, remote or recent past were to be accepted, the only limitation in the later part of the Explanation, ""and

has not remarre(sic) will not have any effective significance. I am unable to agree with the submission of the learned Counsel for the Respondent

about the meaning sought to be given to Explanation (b) to Section 125, Crl. P.C.

It is no doubt true that S. 125, Crl. P.C. finds its place in the Code of Criminal Procedure with the avowed object of providing a summary

remedy to derelicted wives including neglected children, parents and others, left uncared for, who fall within the fold and ambit of Section 125, Crl.

P.C. However, before an award of maintenance is made, there must be proof of neglect or refusal to maintain by the person having sufficient

means. The person claiming, maintenance, if it be the wife which includes the divorced wife as in this case, must also establish that she was unable

to maintain herself. Simply because the legislation has a social object, in the guise of expeditious disposal, orders cannot be made without the basic

evidence which forms the foundation for an award of maintenance u/s 125, Cr. P.C. It is clear from the evidence that the Petitioner living away

from her husband from 1959. She has also obtained an order of divorce in 1960, which she has claimed to be the outcome of the deceit practised

by the Respondent. Even that cannot enure in her favour since the subsequent suit filed by her to set aside the divorce granted in O.P. No. 342 of

1960 has been negatived and in the appeal over that she has again failed. So, the averment that the divorce was the outcome of dupe cannot any

more be available to her. It is seen from the evidence recorded, that the Petitioner is living with her son in the ancestral house of the Respondent,

which appears to have been left in her possession by the Respondent while he himself has chosen to live separately along with the second wife, in

yet another house. Further, it is apparent that the Petitioner is getting the monthly rental of Rs. 150/- from the ancestral house of the Respondent

and therefore she cannot be said to be a person who is unable to maintain herself. It cannot also be lost sight of that she is living with her son and

daughter-in-law in the same ancestral house of the Respondent. The Petitioner has also not established neglect or refusal by the Respondent,

between 1960 and 1987, when she had chosen to initiate action u/s 125, Crl. P.C. There is no evidence, whatsoever, as to why she did not

choose to initiate action earlier for maintenance or at least indicate as to how she was able to maintain herself for such a long period. This long

lapse of time probabilised the case of the Respondent that he was paying the maintenance awarded by the civil court regularly. Whatever that might

be. it is now seen that in O.S. No. 7870 of 1983 on the file of the City Civil Court, the order dismissing the suit filed by the Petitioner has been set

aside and the question of maintenance claimed by the wife against her husband, the Respondent, is pending decision. This case does not come

within the purview of rendering support to a derelicted wife, as a quick remedy, to prevent vagrancy. The basis on which S. 125 . Cr. P. C. was

put in the statute book does not attract the case of the Petitioner It is still open to her to obtain any remedy she thinks she is entitled to in the civil

suit pending in O. S. No. 7870 of 1983.

The question as to whether the decision in J. Sampathkumar v. Subashini will be fully applicable to the facts of this case need not be decided,

for, in any event, there is no merit in this revision, The order of lower Court is sustained and the revision is dismissed.