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2013 DIGILAW 1280 (RAJ)

Vijay Singh v. Kamla @ Kalia Devi

2013-07-15

KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. The counsel for the petitioner has submitted that in the present case, in favour of the petitioner-husband, a divorce decree was granted on the ground of desertion against the respondent wife. The counsel states that the respondent wife being deserter is not entitled to maintenance as per the provisions of section 125(4) Cr.P.C. In support of the above contention, reliance has been placed upon section 125(4) Cr.P.C. Section 125(4) Cr.P.C. reads as under: "(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] 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." 2. The counsel for the petitioner has contended that wife due to acts of omission and commission on her part is disentitled to receive maintenance because of her conduct. 3. The argument advanced by the counsel for the petitioner is not tenable. The controversy raised is no longer res integra. In Rohtash Singh v. Smt Jtamendri & Ors. 2000 (1) ACJ 454 (S.C.) : AIR 2000 SC 952 , considered this aspect and had rejected the contention that a wife divorced on the ground of desertion will not be entitled to maintenance under section 125 Cr.P.C., it will be apposite here to extensively quote from the above said judgment:- "4. The principal contention raised by the learned Counsel for the petitioner is that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of Sub-section (4) of Section 125, Cr.P.C." 4. Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of section 125, Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Thus, all the circumstances contemplated by Sub-section (4) of section 125, Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living adultery. Now, adultery is the sexual Intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Cr.P.C. 5. 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 cannot, 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 the 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 desertion the husband can claim Maintenance Allowance under Section 125, Cr.P.C. and how far can the plea, of desertion be treated to be an effective plea in support of the husbands refusal to pay her the Maintenance Allowance. 6. 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. 6. 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) under Section 13 of the Hindu Marriage Act, the respondent continues to be wife within the meaning of Section 125, Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under:- Explanation-For the purposes 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." 7. 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 wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Ramesh Chander Kaushal v. Mrs. Veena Kaushal, observed as under:- "9. 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 selecting in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts." 7A. Claim for maintenance under the first part of Section 125, Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to; Sub-section (1) of Section 125, Cr.P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. and the fact that she had deserted her husband and on that basis a decree or divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. See : Sukumar Dhibar v. Smt Anjali Dasi 1983 Cri.L.J. 36 (Cal.) The Allahabad High Court also, in the instant case, has taker, a similar view. We approve these decisions as they represent the correct legal position." 8. The Hon'ble Apex Court having considered, threadbare provision 125(4) Cr.P.C., object of the section and status of wife after divorce in very erudite manner, once for all hqa rejected the contention often advanced. Therefore, this court can not come to the rescue of the petitioner. 9. In view of the settled legal provision, the argument raised is to be rejected and them present petition being devoid of merits is dismissed.