Kongini Balan vs M. Visalakshy

Pareed Pillay, J.—Revision petitioner is the respondent in M.C. 63/1979 of the Addl. Judicial Magistrate of the First Class, Tellicherry. The respondent herein filed M.C.63/1979 claiming maintenance under Sec. 125 of the Cr. PC. The learned Magistrate negative the contention of the revision petitioner that the respondent is not entitled to maintenance as provided under Sec. 125 of the Cr. P.C as the marriage was dissolved by mutual consent. The learned Magistrate awarded maintenance at the rate of Rs. 150/- per month. Against the decision of the learned Magistrate the above Crl. R.P. has been filed. The only contention of the revision petitioner is that the respondent is not entitled to claim maintenance u/s 125 Crl. P.C. as the marriage was dissolved by mutual agreement. Contention of the revision petitioner is that a wife who obtained divorce through mutual consent would not be entitled to claim maintenance. It is argued that a "wife who is residing separately by mutual consent" is not entitled to maintenance u/s 125 (4) of the Code and divorce by mutual consent cannot be in a more advantageous position,

Advocate Mr. T. P. Kelu Nambiar appearing for the revision petitioner pointed out that a wife could become a divorcee by different ways, viz. by being divorced by the husband, and by putting an end to the marriage by mutual consent. He argued that only under the first two categories a wife would be entitled to maintenance as is very clear from Sec. 125(1) Explanation (b) of the Cr. P. C. In other words, he contended that a woman who has been divorced by mutual consent cannot claim maintenance from her former husband.

It is the common case that the spouses obtained divorcee by agreement. The question, however, is whether the wife is entitled to maintenance as she obtained her divorce on the basis of such agreement.

Sec. 125 (1) Explanation (b) reads:

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

This explanation shows that for the purpose of maintenance a wife includes a divorced woman.

It is difficult to comprehend that a wife who obtains divorce by mutual agreement is left out from the definition of "wife" as found in the aforesaid explanation. A wife who obtains divorce by mutual agreement does not fall under a different category. By mutual agreement or by intervention of the court a wife can obtain divorce from her husband. Respondent''s status as a divorced wife is not dependent upon the mode of divorce, The Code does not say that a divorced wife is not entitled to maintenance in case divorce has been obtained. by mutual agreement.

It is true that Sec. 125 (4) says that a wife is not entitled to separate maintenance if she and her husband are living separately by mutual consent. There may be cases where a wife and her husband live separately by mutual consent without obtaining divorce Such a wife is not entitled to separate maintenance. But that does not, however, mean that divorced wife is not entitled to maintenance merely on the ground that she obtained her divorce by agreement.

Section 125 (1) Explanation (b) makes it abundantly clear that a woman who has been divorced by her husband or who has obtained divorce from her husband is entitled to maintenance. It makes no difference whether she obtained the divorce by consent or otherwise. It is not possible to accept the contention that a wife who obtains divorce from her husband on the basis of agreement is precluded from claiming maintenance. If that had been the intention of the legislature it would have been specifically made clear in the Code itself. On the other hand, the definition of wife has been expanded so as to include a divorced wife as well. How she obtains divorce and in what manner she obtains is not relevant for the purpose of maintenance.

We are in agreement with the decision of Bhaskaran J, (as he then was) in Valsala v. Surendran (1979 KLT 160) and Bhat J. in Padmanabhan Prasadan v. Sarojfni (ILR 1981 (1) Ker 232) wherein it has been held that a divorced wife is entitled to maintenance irrespective of the mode of divorce. The quantum of maintenance fixed by the learned Magistrate cannot at all be considered to be in any way excessive considering the facts and circumstances of the case.

The order of the learned Magistrate is hereby confirmed and the Criminal Revision Petition is dismissed.