Subhadra vs Rajendra Prasad

This revision petition has been preferred against the order dated 15-2-1997 passed in Criminal Revision No. 103/1994, passed by learned Vth Additional Sessions Judge, Rewa, reversing the order dated 27-6-1994 in Miscellaneous Criminal Case No. 6/1991, passed by the learned Judicial Magistrate First Class, Rewa.

No exhaustive statement of facts are necessary for the disposal of this revision petition, suffice it to say that the applicant filed an application u/s 125 of the Code of Criminal Procedure, 1973 (in short "the Code"), stating therein that the husband has refused to maintain her hence it was prayed to allow monthly allowance for her maintenance. The application was opposed by the husband by filing a reply and contended therein that the wife on her own sweet will left his company. Indeed she is not willing to live with him. On earlier occasion also she filed an application u/s 125, Cr.PC, which was dismissed in default in the reply it has been further contended that repeatedly the husband tried to resume the relationship of husband and wife but the applicant did not pay any heed to it and voluntarily refused to live with him. Hence it was prayed that the application be dismissed.

The learned Trial Court allowed the application of maintenance and directed the husband to pay a sum of Rs. 300/- per month to his wife. Feeling aggrieved by the order of Magistrate the husband filed a revision petition before learned Vth Additional Sessions Judge, Rewa, who after considering the entire material placed on record found that the application of the wife deserves to be dismissed, as there are reasonable grounds to hold that she herself without any sufficient reason has refused to live with her husband. Hence this revision petition has been filed by the wife.

It has been contended by the learned Counsel for the applicant that a decree for divorce having been passed u/s 13 of the Hindu Marriage Act, would not disentitle the wife to claim maintenance allowance u/s 125 of the Code. To bolster his contention, he has placed heavy reliance on the case of Rohtash Singh Vs. Smt. Ramendri and Others, and Mussamat Zohara Khatoon v. Mohd. Abrahim AIR 1983 SC 1243.

Combating the aforesaid submission of learned Counsel for the applicant, Shri P.R. Bhave, learned Senior Advocate has submitted that in the suit for the divorce specific issues were framed regarding the desertion on the part of the wife against her husband as well as her cruel behaviour. According to him both the issues were decided in favour of the husband and against the wife. Once having been held by the Civil Court that the wife deserted her husband and a decree of divorce has been passed on that account, would debar her from making an application u/s 125 of the Code.

After having heard the learned Counsel for the parties, I am of the view that the revision deserves to be allowed.

It is no more in dispute that the applicant was the wife of the respondent. An application u/s 125 of the Code filed by her could be rejected only on the ground envisaged under Sub-section (4) of Section 125 of the Code, which reads as under:--

"Sub-section (4). 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."

In the case of Rohtas Singh (supra), the law laid down by the Supreme Court can not be marginalised and blinked away. It has been held by Their Lordships that a woman who has been divorced by her husband under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. This has been held by Their Lordships by interpreting the word ''Wife'' explained in the explanation to Section 125 of the Code, which I think it apposite to re-write here:--

Explanation :-- For the purpose of this Chapter:--

(a) ..... ..... ..... (b) "Wife" includes a woman who has been divorced by or has obtained a divorce from her husband and has not re-married.

The Apex Court in the case of Rohtas Singh (supra), has laid down the law in Paras 7, 8 and 9, which read thus :--

"7. The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She can not, without any sufficient reason, refuse to live with her husband. "Sufficient reasons" have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance u/s 125, Cr.PC and how far can the plea of desertion be treated to be an effective plea in support of the husband''s refusal to pay her the Maintenance Allowance. 8. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court u/s 13 of the Hindu Marriage Act, the respondent continues to be "wife" within the meaning of Section 125; Cr.PC on account of Explanation (b) to Sub-section (1) which provides as under :--"Explanation :-- For the purpose of this Chapter-

(a) .....

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

On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, , observed as under :--

This provision is a measure of social justice and specially enacted to protect women and children and falls within the Constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts"."

If the ratio of the case of Rohtas Singh (supra) is tested on the anvil of the present facts and circumstances of the case, it would reveal that in this case also there is a decree of divorce in favour of the husband on the ground of desertion and thereafter the wife/applicant filed an application u/s 125 of the Code, which has been rejected by the learned Additional Sessions Judge, while exercising its revisional jurisdiction. To me, the approach of learned Additional Sessions Judge, runs contrary to the dictum laid down by the Apex Court in the case of Rohtas Singh (supra). Yet there is another case on the subject in hand. The Apex Court in the case of Zohra Khatoon (supra) has held that under Clause (b) to the explanation to Section 125 of the Code, the wife continues to be a wife within the meaning of provision of the code, if, she has been divorced by her husband or other wife obtained a divorce and has not remarried.

In this view of the matter by placing reliance on the decisions of Rohtas Singh (supra) and Zohra Khatoon (supra) I have no hesitation to hold that the impugned order suffers from illegality. Hence the same is set aside.

In the result the revision petition succeeds and is hereby allowed. The impugned order passed by learned Additional Sessions Judge, is hereby set aside and the order passed by Trial Court is hereby restored. The parties are directed to bear their own costs throughout.