Satya Davi vs Ashok Kumar

I.S. Tiwana, J. (Oral)

The following undisputed facts furnish the necessary background of the case.

The marital status of the parties was set at naught by a decree of divorce dated 29. 10. 1981(Ex. D1). It was the result of a petition filed by the respondent husband under section 13 of the Hindu Marriage Act, 1955 on the plea that the petitioner wife had deserted him for more than 5 years. Subsequently on 18. 1. 1984 she filed the present application under section 125 of the Code of Criminal Procedure, 1973 (briefly the Code), on the plea that she had no income of her own. and the respondent be directed to provide her the necessary maintenance. The respondent chose to contest the stand of the petitioner with the assertions that she being a divorcee, was not entitled to be maintained by him and she was having enough income by running a dairy. He even chose to plead that she had entered into some sort of a secret marriage. As a result of the trial that followed, the learned Magistrate vide his order dated 14. 8. 1985, granted her maintenance at the rate of Rs. 150/ per mensem. He recorded a categorical finding that her status as a divorcee did not in any way disentitle her from seeking maintenance from the respondent who was earning Rs. 600/ to 700/ per mensem. He also concluded that the petitioner had no income of her own. This order of the trial Magistrate was successfully impugned by the respondent before the Additional Sessions Judge. What weighed with the revisional Court was that the petitioner had failed to plead and state in a forthright manner that she was neglected to be maintained by the respondent and "neglect" by the husband, being a necessary ingredient of section 125 of the Code, she could not succeed. It is this order of the learned Additional Sessions Judge dated 5.1.1987 which is impugned before me under section 482 of the Code.

Having heard the learned counsel for the parties, I find that the)earned revisional Court completely misdirected itself in appreciating the controversy raised in this petition. It is patent, in the light of the facts noticed above, that the parties had ceased to be husband and wife and that the marriage between the parties came to an end with the passing or the decree of divorce dated 29.10 1981(Ex. D 1). In spite this decree, the right of the petitioner to ask for maintenance from the respondent in the absence of any facts which can possibly disentitle her of that, is well recognised by section 125(1) read with Explanation(b) to the same. This provision has been the subjectmatter of consideration of their lordships of the Supreme Court in Bai Tahira v. Ali Hussain Fissalli and another, 1979 PLR 218 and it was ruled therein:

"We hold 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. In the normal course, an order for maintenance must follow, the quantum having been determined by learned Magistrate at the trial level."

The plea raised on behalf of the respondent and which, as already indicated, has weighted with the revisional Court that in the absence of a specific plea in the application that the petitioner had been neglected to be maintained by the respondent and also the absence of a statement to that effect in Court disentitled her to the claim had also received their lordships'' consideration and was commented upon in the following manner:

"Moreover, the husband has not examined himself to prove that he has been giving allowances to the divorced wife. His case, on the contrary, is that she has forfeited her claim because of divorce and the consent decree. Obviously, he has no case of nonneglect. His plea is his right to ignore."(emphasis supplied)

In this case, too, the primary plea of the respondent husband to negative the claim of the petitioner was that on account of the grant of the decree of divorce in his favour, the petitioner was not entitled to any maintenance from him. It was not his case at any stage that he had provided for the petitioner''s living in any manner. In these proceedings which are essentially meant for the grant of speedy and summary remedy against starvation of a deserted wife or child, no undue importance can be given to the theory of "onus to prove." Similarly, it is not possible to place any strict construction on the pleadings of the parties as is the case in civil matters. It is only the satisfaction of the Court as a result of the summary enquiry envisaged by this section that a wife who is unable to maintain herself has been neglected by her husband who has enough means to do so that matters. Such neglect or refusal on the part of the husband may be express or implied. It may be inferred from words or conduct. All that is necessary is that it must be in present, i. e. in existence at the time of the filing of the application. I am of the opinion that in the instant case, this requirement is fully satisfied in view of the fact that it was the husband who initiated. the proceedings for divorce and this clearly gave out his intention to get rid of the wife, i. e. the petitioner or to maintain her in any manner. I, therefore, find it difficult to sustain the order of the revisional Court.

At this stage, it is contended by Shri Jain that while setting aside the order dated 5.1.1987. the case may be sent back to the revisional Court to examine and to record a conclusion on the plea of the respondent that the petitioner had entered into a secret marriage. I therefore, she was not entitled to any maintenance from him. I find no substance in this submission, in view of the fact that except raising this plea in him reply to his the application filed by the petitioner, he has neither himself stated anything about it as R W. 1 nor has he even pat a suggestion to that effect to her when she was in the witnessbox as AW 1. Besides this, the particulars of the man whom she is alleged to have remarried are not even disclosed in the reply filed by him.

In the light of the discussion above, I allow this petition and while setting aside the order of the learned Additional Sessions Judge, Jalandhar, dated 5. 1. 1987, restore that of the trial Magistrate, Jalandhar.