Prakash vs Jaswant Kaur

S.C. Mital, J.—The question of law involved in this petition is whether a wife, who has been divorced by her husband and has not re-married, is entitled to maintenance u/s 125 of the Code of Criminal Procedure, 1973?

The salient facts of this case are that Parkash secured a decree for restitution of conjugal rights against his wife Jaswant Kaur on 13th October, 1972. On the basis thereof he, having satisfied the requirement of law, obtained decree for dissolution of marriage against Jaswant Kaur on 3rd October, 1975. The parties did not resume cohabitation. Then on 29th July, 1977, Jaswant Kaur applied u/s 125 of the Code of Criminal Procedure claiming maintenance from Parkash. She succeeded in getting Rs. 50 per month as maintenance by the order of the Judicial Magistrate I Class, Hoshiarpur. The revision petition filed by Parkash was dismissed by the Additional Sessions Judge, Hoshiarpur. Parkash has now preferred the present petition u/s 482 of the Code of Criminal Procedure.

Support to this petition was sought from a Single Bench decision of this Court in Atma Ram Sharma v. Manjit Rani 1974 C.L.R. 217 wherein the decree of restitution of conjugal rights obtained by the husband was held to operate as a bar to the application for maintenance filed u/s 488 of the Code of Criminal Procedure (old). As would be presently seen after the amendment of Section 488 by Section 125 of the New Code ratio of this authority is no longer applicable to the case of a divorce. For the same reason the other ruling Baldev Raj and Ors. v. Pushpa Rani 1970 Cri. L.J. 157 is also of no avail to Parkash Petitioner.

Explanation (b) to Section 125(1) of the New Code reads:

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

It deserves mention that this provision did not exist in Section 488 of the Code (old). Above all the question under consideration stands concluded by an authoritative pronouncement of their Lordships of the Supreme Court in Bai Tahira v. Alt Hussain Fissalli Chothia and Anr. 1979 P.L.R. 218. Their Lordships have held that on a simple reading of Section 125(1) Explanation (b) it would be clear that every divorcee, otherwise eligible is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current Code. The same view was expressed by K. S. Tiwana, J. in Tejinder Kaur v. Balbir Singh, 1978 P.L.R. 199, with which, we concur.

Section 125 requires, as a sine qua non for its application, neglect by husband. Relying on this observation of their Lordships of the Supreme Court in Bai Tahira''s case, learned Counsel for Parkash urged that Jaswant Kaur has failed to prove this essential ingredient of Section 125. The finding of the Additional Sessions Judge to the contrary against Parkash, which is unassailable in this petition u/s 482 of the Code, makes the contention devoid of merit.

For the foregoing reasons, this petition fails and the same is hereby dismissed.