Nirmaljit Kaur vs Harbans Singh

S. S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'') read with Article 227 of the Constitution of India, has been filed by Nirmaljit Kaur for setting aside the order dated 1721987 (Annexure P1) passed by the Judicial. Magistrate Ist Class, Ferozepur, and, the order dated 1791987 Annexure P2) passed by the Additional Sessions Judge, Ferozepur, whereby, the earlier order dated 6.12.1984 passed by the Judicial Magistrate Ist Class, Ferozepur, allowing maintenance to her at the rate of Rs. 200/ per month, was set aside.

In brief, the facts of the case relevant for the disposal of this case, are, that on her application the Judicial Magistrate Ist Class, Ferozepur, vide order dated 6.12.1984 granted maintenance at the rate of Rs. 200/ per month in favour of the petitionerwife and against the respondenthusband under Section 125 of the Code. On the petition moved by the husband under Section 13 of the Hindu Marriage Act, decree of divorce for dissolution of marriage between the parties was passed by the Additional District Judge, Ferozepore, vide order dated 551986. Thereafter, the husband moved an application under Section 127 of the Code for cancellation of the order of the Judicial Magistrate Ist Class dated 6121984, granting maintenance to the wife. The order granting maintenance was set aside under Section 127 of the Code by the Judicial Magistrate Ist Class, Ferozepore, vide, impugned order dated 1721987, which, was upheld on revision by the Additional Sessions Judge, Ferozepore, vide, his order dated 1791987, mainly on the ground that after divorce the marital lies between the parties had come to an end, the wife had withdrawn from the company of the husband since 111982.

Counsel for the parties were heard.

It is well settled that even after grant of decree of divorce, the divorceewife is entitled to get maintenance from her husband till she has not remarried in view of Explanation (b) to subsection (1) of Section 125 of the Code.

On behalf of the husband, however. it was contended that letters patent appeal against the decree of divorce is still pending in this Court, and, as such, the said decree has not become final. Even in such a case where the appeal available, whether the appeal ends in divorce or not the wife''s claim for maintenance qua wife under the definition contained in the Explanation (b) to Section 125 of the Code continues, unless the parties make adjustments and come to terms regarding the quantum or the right to maintenance, as held in Captain Ramesh Chander Kaushal v. Veena Kaushal and others, AIR 1978 SC 1807. In the instant case also the decree of divorce has been upheld by the Single Bench of this Court, and, at present the same subsists. Thus, there would, be no legal bar for the divorceewife to claim maintenance from her husband till her remarriage.

However, in view of Explanation (b) to subsection (1) of Section 125 of the Code, three defences under subsection (4) of Section 125 of Code are available to the husband, as held by a Division Bench of this Court in Criminal Revisional No. 747 of 1986 (Chander Kumar Sharma v. Smt. Shamiriti Sharma) decided on 5121988. Only first defence against the divorceewife, that she is living in adultery, would be open to the husband, and, not the other two defences, available under subsection (4) of Section 125 of the Code. In the present case at no stage, such a defence was taken by the husband, and, obviously, the divorceewife would be entitled to maintenance till her remarriage.

For the foregoing reasons, both the impugned orders dated 1721987 passed by the Judicial Magistrate Ist Class (Annexure P1) and, dated 1791987 passed by the Additional Sessions Judge (Annexure P2) are set aside, and, the order dated 6121984, granting maintenance to the petitioner wife at the rate of Rs. 200/ per month, passed by the Judicial Magistrate Ist Class, Ferozepore, is restored. However, it is clarified that there would be no legal bar for the affected party to seek modification of the aforesaid order granting maintenance, after the decision of the letters patent appeal, concerning decree of divorce between the parties.

This petition is accordingly allowed.