Manjit Kaur vs Pavittar Singh

J.S. Sekhon, J.—Mst. Ranjit Kaur, petitioner in proceedings u/s 13 of the Hindu Marriage Act, 1955, instituted against her husband, Joginder Singh, had relinquished ''her right to maintenance as well as the custody of her child. She got decree of divorce from the concerned Court on the ground of cruelty. Thereafter she resorted to proceedings u/s 125 of the Code of Criminal Procedure claiming maintenance from her husband. This petition was dismissed by the trial Court vide impugned order Annexure P-2 dated 29th September, 1989 on the ground that the petitioner having surrendered her right to claim maintenance was not entitled to maintenance allowance u/s 125 Criminal Procedure Code.

Ranjit Kaur, petitioner then preferred revision petition which was also dismissed by the learned Additional Sessions Judge, Sangrur vide his order Annexure P-3 on similar grounds. Under these circumstances Mst. Ranjit Kaur invoked the inherent jurisdiction of this court u/s 482 of the Code inter alia contending that the surrender of right of maintenance in the divorce proceedings would not debar her from claiming maintenance u/s 125 of the Code of Criminal Procedure, as the legislature had enacted these provisions in order to save the women and children or parents, as the case may be, from becoming destitute. The husband-respondent resisted this application. After hearing both the parties, this Court vide order dated 28.1.1991 referred the matter to the Division Bench in view of the conflicting judgments of a Single Bench of this Court in Darshan Singh v. Maninder Kaur 1987 (2) H.L. R. 386 and that of Gujarat High Court in Sai Laxmiben v. Bharatbai Vechathba Patel and Anr. The following question was posed for a decision by the Division Bench :

"Whether a wife who has voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance u/s 125 of the Code of Criminal Procedure".

The Division Bench after elaborate discussion relying upon the decision of Supreme Court vide order dated May 29, 1991 has answered the question in the negative by holding that the husband is not absolved from discharging his obligation u/s 125 of the Code towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do the duty for maintenance allowance. It was further remarked that in other words in every such case, magistrate is bound to examine whether there has been neglect or refusal on the part of the husband to maintain the wife and that the wife is unable to maintain herself, he is duty bound to award appropriate maintenance u/s 125 of the Code.

Consequently there is no option but to hold that the impugned order of the trial court as well as of the revisional Court being not legally justifiable, require quashment. It is ordered accordingly. The trial Court is directed to restore the above petition and dispose it of in accordance with law. The trial Court shall give notices to the parties before taking further steps in the matter.