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2000 DIGILAW 1293 (PAT)

Sadhna Srivastava v. Jai Prakash Srivastava

2000-12-05

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This is an application filed by petitioner Smt. Sadhna Srivastava against her Ex. husband, Jai Prakash Srivastava, who is sole opposite party impugning order dated 4.8.1998 recorded by the learned Principal Judge, Family Court at Patna under which an application filed by the petitioner under section 125 of the Code of Criminal Procedure ("the Code", in short), was dismissed. 2. It will appear that the opposite party had appeared in this case but no one appeared on his behalf when the case was called out, hence the learned counsel for the petitioner was heard and I perused the record, including the impugned order. 3. From the impugned order following points would emerge : (i) that the petitioner and the opposite party were legally married wife and husband and the suit between them for divorce by mutual consent was filed which was disposed of on 31.8.1990 granting divorce to them. (ii) that the petitioner was earlier teacher in a School but the learned lower Court held on the basis of evidence on record that she had resigned from service and was not earning any more. (iii) that the opposite party was a lecturer in a College on temporary basis at the time of the filing of the application in the lower court, but subsequently he also lost his service. 4. The learned lower Court dismissed the application on two grounds, viz, (i) the petitioner was a divorcee, hence relationship of husband and wife was no longer subsisting between them hence the opposite party was not liable to pay maintenance amount to her, and (ii) that the petitioner was not entitled to any maintenance as opposite party had no sufficient means to maintain her. 5. In my view both the grounds on which learned lower Courts dismissed the application for maintenance are erroneous and not maintainable. Explanation (b) of sub-section (1) of Section 125 of the Code reads as follows:- "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried." 6. Sub-section (4) of section 125 of the Code 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." 7. Sub-section (4) of section 125 of the Code 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." 7. Sub-section (4) provides that no wife shall be entitled to receive maintenance from her husband under section 125 of the Code if they are living separately by mutual consent. Such position may arise when read separately, but when read with explanation (b) as aforesaid, it will appear that this provision relates to a stage when they are so living separately but are not legally divorced. Reason being that, as defined under explanation (b), wife includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried. 8. Therefore, a woman either divorced by her husband or who has obtained divorce from her husband would be a wife within the meaning of section 125 of the Code and would be entitled to receive allowance from her husband. Even in a case of divorce by mutual consent the husband agrees to divorce the wife and the wife also, by giving her consent, obtains divorce from her husband, but in either case she would come within the meaning of wife and would be entitled to maintenance. 9. That a divorced wife is also entitled to maintenance under the provision of section 125 of the Code has been held in various decisions of the Apex Court which have been relied upon by the learned counsel for the petitioner, such as, in the case of Bai Tahira vs. Ali Hussain Fissafli and Anx; A.I.R. 1979 SC 362, and in the case of Most. Zohara Khatoon vs. Mohd. Ibrahim; A.I.R. 1981 SC 1243, to cite a few. 10. In so far as the second point on which this application was dismissed, is concerned the concept of maintenance by a husband, of wife, does not actually depend upon any property that he may have or on the amount that he is earning. Zohara Khatoon vs. Mohd. Ibrahim; A.I.R. 1981 SC 1243, to cite a few. 10. In so far as the second point on which this application was dismissed, is concerned the concept of maintenance by a husband, of wife, does not actually depend upon any property that he may have or on the amount that he is earning. It is the right of the wife to be maintained by her husband even after divorce, and even if the husband is not employed or has no property but is capable of earning then the plea that being unemployed or being devoid of any property he is not entitled to maintain his wife will not be available to him. Even if the husband is having no property or has no earning even for the time being, he obviously is maintaining himself by whatsoever means and all that he has to do is to share this mean of maintaining himself with his wife. This may effect (sicaffect ?) the amount of maintenance that can be allowed, not the right of maintenance itself. The evidence that has come and has been placed in the judgment also is that the husband was a lecturer earlier, hence a qualified person. He was said to be 35 years old, therefore, still in his youth. There is nothing in the judgment even to suggest that there was any evidence to show that the husband had such physical incapability which would render him unable to maintain either himself or his wife. In a case in which both wife and husband are not earning, it will be the right of the wife to be maintained by the husband. 11. The learned counsel for the petitioner has. relied upon certain decisions in this regard such as in the case of Chander Prakash Bodh Raj vs. Smt. Shila Rani Chander Prakash; A.I.R. 1968 Delhi 174; and in the case of Dhani Ram vs. Most. Ram Dei; A.I.R. 1955 Allahabad 320. The aforesaid decisions related to section 488 of the Code of Criminal Procedure, 1898. It was held in the aforesaid decisions that if the husband was able-bodied person capable of earning, then the ground of his incapability to pay maintenance allowance would not be available to him. 12. Ram Dei; A.I.R. 1955 Allahabad 320. The aforesaid decisions related to section 488 of the Code of Criminal Procedure, 1898. It was held in the aforesaid decisions that if the husband was able-bodied person capable of earning, then the ground of his incapability to pay maintenance allowance would not be available to him. 12. Section 125 of the Code states that if any person, having sufficient means neglects or refuses to maintain his wife or the persons mentioned in sub- section (1), he may be directed by the Magistrate to make monthly allowance for such maintenance. It will appear that the learned lower Court had based its decision on the expression-"sufficient means". However, in section 488 of the Code of 1893 similar expression "sufficient means" had been used. Therefore, the aforesaid decisions which related to section 488 of the old Code would equally apply to the Code presently in force. 13. Therefore, I find that both the grounds on which instant application was dismissed by the learned Principal Judge of the Family Court at Patna are not tenable. In view of the aforesaid this application is allowed and the impugned order dated 4,8.1993 is hereby set-aside and the case is remanded back to the Principal Judge, Family Court at Patna for deciding the quantum of maintenance and the period in past for which also that would be payable, afresh. This should be decided, after giving opportunity to be heard on the point to both the sides, preferably within three months of the receipt of this order.