Rohtash Singh vs Ramendri and Another

B.K. Sharma, J.—This is a revision against the judgment and order dated 13.3.1997 passed by the Judge, Family Court, Meerut in Case No. 311 of 1993 u/s 125, Code of Criminal Procedure. Whereby he had directed the revisionist to pay Rs. 400 per month as maintenance to the opposite party No. 1 from the date of the application (28.5.1993).

I have heard the counsel for the parties and have also gone through the record. The only ground on which the learned Counsel for the revisionist has challenged the maintenance order passed by the Judge, Family Court is that even before the passing of this impugned order which is dated 13.3.1997, the civil court had granted a decree of dissolution of marriage u/s 13, of the Hindu Marriage Act by its order dated 15.7.1995 and that too, on the ground of desertion by her.

The learned Counsel for the revisionist has relied in this case on the provisions of Section 125(4), Code of Criminal Procedure which runs as follows ;

No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or If, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

Sub-section (5) provides for cancellation of an order of maintenance made earlier u/s 125(1), Code of Criminal Procedure. on proof of certain circumstances including the circumstances that she refuse to live with the husband without sufficient reasons or they are living separately by mutual consent.

Learned Counsel has relied on a single Judge authority of this Court Udit Narain v. Smt. Paudharia (17) 1980 ACC 47. In that case, the husband had married for second time 10 years ago and the wife had acquiesced in the second marriage on being assured of her maintenance and so remarriage could not be a good ground for her for living separately and that being so, it was held by the Court that on this ground of second marriage she was disentitled to get maintenance u/s 125, Code of Criminal Procedure. The facts of this case were entirely different and so this ruling had no application to the present case.

The learned Counsel for the opposite party No. 1 has supported the order passed by the Judge, Family Court awarding maintenance and claimed that there was nothing illegal in it.

There is a string of authorities categorically stating the legal position on the subject. After divorce, the wife is not bound to discharge marital obligations including her company and submission to conjugal rights of the husband. The husband has equally no right to request her to come and reside along with him as a condition precedent to payment of maintenance. Marital right and obligations are available only during the subsistence of the marriage. To ask for the company of a divorced wife and make it a condition precedent of the liability for maintenance is opposed to the entire provisions Velukutty Vs. Prasannakumari,

The following observations of the Apex Court in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, , are worth mentioning:

The next submission is that the absence of mutual consent to live separately must be made out if the hurdle of Section 125(4) is to be overcome. We see hardly any force in this plea. The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill. Do divorcees have to prove mutual consent to live apart? Divorce painfully implies that the husband orders her out of the conjugal home. If law has nexus with life this argument is still-born.

In Darshan Pal Vs. Smt. Darshna, , it was observed: A divorced wife is under no obligation to live under the roof of the husband. Equally, the husband cannot forestall the claim of maintenance by making a suggestion that he was willing to keep her. The nuptial tie has been dissolved once for all. It is the new status of the wife as a divorced wife which gives her the right of maintenance. No specific words of neglect or refusal need be pleaded or proved in case of divorced wife. When a husband refuses to pay maintenance to his divorced wife unable to maintain herself neglect or refusal is inherent in it.

It was held in Sadasivan Pillai Vs. Vijayalakshmi, . Though the indigent wife should not get the benefit of maintenance under circumstances contemplated by Sub-sections (4) and (5) of Section 125 of the Code, yet these circumstances, by their very nature are inapplicable in the case of a divorced wife. Where wife and husband are lawfully divorced, Sub-section (4) will not come into operation at all since a divorced wife does not reside separately by mutual consent but resides so as a consequence of her status as a divorcee.

In Molyabai Vs. Vishram Singh, , a learned single Judge of Madhya Pradesh High Court observed as follows:

In the present case on the pleadings of the parties, it is clear that a divorce has taken place between the parties and the parties are living separately because of the divorce. It cannot therefore be said that they are living separately by mutual consent as husband and wife and, therefore, the applicant is disentitled from receiving maintenance. Though the definition of wife by virtue of Explanation ''B'' to Section 125(1) includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried, in the very nature of things, in Sub-section (4) of Section 125, the word wife'' so far as the question of living separately by mutual consent Is concerned, cannot be said to include a divorced wife also. Reading in the proper context, a wife who has been divorced by her husband, or has obtained divorce from her husband and has not remarried, by the very fact of divorce, has to live separately from her husband, she is not expected at all to live with her husband and therefore, the question of her living separately by mutual consent does not arise. Consent to live separately is required only when there is an obligation to live together. When the obligation to live together itself has come to an end, living separately of a divorced couple cannot be said to be living separately by mutual consent for the purpose of Sub-section (4) of Section 125, disentitling the divorced wife from claiming maintenance. The very purpose of the Explanation ''B'' to Sub-section(4) of Section 125 of the Code of Criminal Procedure. shall be defeated if a divorced wife is expected to live or is taken to be living separately from her husband by mutual consent. The harmonious construction of the two provisions can only be that a divorced wife shall not be deemed to be living separately from her husband by mutual consent, she has to be taken to be living separately from her husband under the compulsion of failure of her marriage which is acknowledged by the decree of divorce.

The learned Counsel for the Respondent No. 1 has placed reliance on an authority of the Apex Court Gurmit Kaur v. Smurfit Singh alias Jeet Singh 1996 ACJ 603. In that case, there was an agreement for divorce by mutual consent and there was no challenge to the validity of the agreement of divorce and thus the mutual relations had come to a terminus. The provisions of Section 125(4), Code of Criminal Procedure, have been aptly interpreted by the Apex Court in paras 6 and 7 of this authority which may be quoted verbatim.

The concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. In other words, during the subsistence of the marriage, if the parties agree to live separately by mutual consent, no party is entitled to lay any claim for maintenance from the other party.

In view of the divorce agreement referred to hereinabove, the marital relations have come to a terminus. By virtue thereof, the Respondent had already contracted the second marriage. In other words, the first marriage has been put to an end. The Appellant thereby became entitled to claim maintenance and will continue to do so, so long as she remains unmarried and she is unable to maintain herself.

It is clear from this authority that during the subsistence of marriage if the parties live separately by mutual consent, there entitled to receive so long as she remained unmarried and was unable to maintain herself. Here it may be pointed out that in the Explanation of Sub-section (1) of Section 125, Code of Criminal Procedure., it has been said that the term "wife" includes a divorced woman who has not remarried. The provisions of Section 125(4), cannot apply to the case of a divorced wife because there is no question of her refusing to live with her husband nor there was any question of their living separately by mutual consent. After the divorce, the divorced wife was neither obliged nor entitled to live with her ex-husband and that being so there was no question of an offer to keep her with him or of her refusal to oblige. The factum of divorce would be a sufficient reason for her refusing to live with her ex-husband and there was no question of their living separately by mutual consent, once the divorced had taken place. The question of living separately by mutual consent is limited only to the period of the subsistence of the marriage.

In view of the above settled legal position, it is clear that the claim of a divorced wife for maintenance can be defeated only on the ground either that she had remarried or that she was able to maintain herself. It is immaterial that the divorce decree has resulted because of the wife having deserted the husband. Once the divorce decree is passed, the husband became entitled to remarriage and he did remarry. However, consequent upon the decree of divorce, the divorced wife became entitled to claim maintenance u/s 125(1), Code of Criminal Procedure., so long as she remained unmarried and was not able to maintain herself.

Consequently, this revision has no force and is hereby dismissed. The interim orders dated 4.7.1997, 8.4.1997 and 6.7.1998 stand discharged.

Let a copy of this judgment be sent by the office to the Judge, Family Court concerned within a week from today for information.