Shri Suvankar Sengupta vs Smt. Kakali Sengupta

Malay Kumar Basu, J.—This revisional application is directed against an order dated 3.11.98 passed by the learned Judicial Magistrate at Barrackpore, within the District of North 24 Parganas in connection with Maintenance Case No. M. 51 of 1997 u/s 125 of the Code of Criminal Procedure which was filed by the wife praying for maintenance for herself and her minor sons living under the custody of the mother, respondent No. 2. The case of the applicant is that the marriage between him and the opposite party took place in 1990 as per the Hindu rites, but after the lapse of two years, the marriage broke down and the parties filed a joint petition for decree of divorce on mutual consent under the provisions of Section 13B of the Hindi Marriage Act which was allowed by the learned Additional District Judge and a decree of divorce on-mutual consent was passed thereby dissolving their marriage in (sic) Suit No. 481 of 1992. But subsequently respondent i.e., the divorced wife filed an application u/s 125 Criminal Procedure Code claiming maintenance from this revisional application before the Court of Subdivisional Judicial Magistrate, Barrackpore and finally the case being No. 51/97 was transferred to the Court of Judicial Magistrate, 2nd Court, Barrackpore for healing. There this petitioner appeared and challenged the legal maintainability of that maintenance-petition on the ground that there having been a decree of divorce on mutual consent and the parties living separately such a petition could not lie. But that petition was heard and dismissed by the learned Magistrate and a date for hearing on merit of the case has been fixed. Being aggrieved by this order, the petitioner has preferred the present revisional application challenging the same as illegal and invalid.

On a perusal of the impugned order I find that learned Magistrate rejected the contention of the husband-petitioner that the application for maintenance filed by the O. P. was not legally maintainable since she had been directed on the strength of a decree passed by a Civil Court of divorce on mutual consent u/s 13B of the Hindu Marriage Act on the ground that in view of the Explanation (b) to sub-section (1) of Section 125 Criminal Procedure Code "wife'' includes a divorcee wife if she has not remarried. I do not find any fault with this finding of the Court below. Even if the divorce is a result of mutual consent, there will be no change in this legal position, inasmuch as, the sole object of providing such kind of maintenance is to prevent destitution and vagrancy. So, if the other condition laid down u/s 125 for getting this benefit are fulfilled, a wife divorced on mutual consent will be equally entitled to get an award of maintenance under this section. The expression occurring in sub-section (4) or (5) of Section 125, namely, "if they are living separately by mutual consent" should not be equated with the separate living in consequence of a decree of divorce on mutual consent being passed by a Civil Court. Divorce presupposes separate living. But this separate is not to be treated as separate living on mutual consent Otherwise, the inclusion of a divorced wife in the definition of "wife" would have been unnecessary Separate living is a course of law and an essential corollary of a decree of divorce and that separate living cannot be treated as separate living on mutual consent This is why the contention of the petitioner that the findings of the learned Magistrate are against the spirit behind the provisions of sub-sections (4) and (5) of Section 125 is unacceptable.

The learned Advocate for the petitioner has referred to a Single Bench decision of Karnataka High Court in 1987 Cr.L.J 163 in support of his contention. On going through this judgment I find that it has no application to the present case. In this case............... reference, in view of disputes and differences between the husband and wife they entered into a mutual agreement for divorce by consent and one of the terms of this agreement was that they would live separately. Relying on the written document showing such a mutual consent between the parties regarding separate living, the Court held that Sub-section (4) of Section 125 Criminal Procedure Code would be attracted here and the wife could not enforce her right for maintenance in view of her consent to the separate living. Thus in this case under reference there was no divorce as yet when the maintenance petition was being considered by the Court and there was only agreement for divorce and on that account the couple were living separately from each other whereas in our present case the fact is totally different. There has been already a decree of divorce between the parties on mutual consent passed by a competent Civil Court and the wife being a divorced wife is quite entitled to claim maintenance u/s 125 Criminal Procedure Code in view of the definition of "wife" as given under that section already discussed above. Thus the ruling cited above is of no help to the petitioner. On the contrary, a Division Bench decision of Kerala High Court reported in 1986 Cr.L.J. 697, comes in aid of the O. P. wife. In this ruling, it has been held that a wife who obtained divorce by mutual agreement is not left out from the definition of "wife" u/s 125(1) Criminal Procedure Code, explanation (b) and she having obtained divorce by mutual agreement does not fall under a different category and is not precluded from claiming maintenance, it was further held that a woman''s status as a divorced wife is not dependant upon the mode of divorce and there may be cases where a wife and her husband living separately by mutual consent without obtaining divorce is not entitled to separate maintenance in view of Subsection (4) of Section 125; but that does not mean that a divorced wife is not entitled to maintenance merely on the ground that she obtained her divorce by agreement. At any rate, the mere fact that the divorce was effected on mutual comment ipso facto will not disentitle the wife from claiming maintenance and on such a petition for maintenance being filed it will be the duty of the Court in examine the case in the light of the provisions of Section 125 of the Code just like any other ordinary petition under this section. In view of these reasons I find no merit in this revisional application which must fail and be dismissed. The impugned order is affirmed.

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