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2015 DIGILAW 325 (HP)

Manoj Kumar v. Champa Devi

2015-04-09

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. The petitioner under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short ‘Code') is directed against the order dated 17.9.2007 passed by learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, H.P. whereby he has ordered a sum of Rs. 1,000/- per month as maintenance to the respondent and is further directed against the order dated 12.6.2012 passed by learned Sessions Judge, Mandi whereby the maintenance of Rs. 3,000/- per month has been awarded to the respondent. 2. The respondent filed a petition under Section 125 Cr.P.C. which was allowed vide order dated 17.9.2007 and maintenance of Rs. 1,000/- per month was awarded to the respondent from the date of filing of the petition. 3. The respondent later filed a revision petition before the learned Sessions Judge, Mandi, which was decided on 12.6.2012 and the maintenance was enhanced from Rs. 1,000/- to Rs. 3.000/- per month. 4. Learned counsel for the petitioner initially argued that the petitioner having obtained a decree of divorce on the basis of desertion was under no obligation to pay maintenance to the respondent in view of the provisions contained in Section 125 (4) Cr.P.C., but when confronted with the judgment of the Hon'ble Supreme Court in Vanamala (Smt.) v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299 , he gave up this plea. It shall be apt to refer to para 3 of the report wherein the expression ‘wife' has been construed in the following manner: "3. Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs. 500/- in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the sub-section defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. 500/- in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the sub-section defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent has neglected or refused to maintain her. Counsel for the respondent, however, invited our attention to sub-section (4) of Section 125, which reads as under:- (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. On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said sub-section does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded." 5. In the context, therefore, sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded." 5. Learned counsel for the petitioner would then argue that no doubt, the divorced woman continues to enjoy status of ‘wife' for claiming maintenance under the provisions of the Code, but since the decree of divorce was passed on the ground of desertion by wife, the respondent would not be entitled for maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. 6. I find substance in this argument and the same is otherwise clinched by the judgment of the Hon'ble Supreme Court in Rohtash Singh v. Smt. Ramendri and others AIR 2000 SC 952 wherein the Hon'ble Supreme Court held as under: "11. Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125 Cr.P.C. was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for that short period, we would not be inclined to interfere." 7. Ironically, learned counsel for the respondent in order to claim maintenance has also placed reliance upon the judgment of the Hon'ble Supreme Court in Rohtash Singh's case (supra), but then as observed by the Hon'ble Supreme Court, since a decree of divorce was passed on the ground of desertion by the respondent, therefore, she would not be entitled for any maintenance prior to passing of the decree. 8. Accordingly, the present petition is partly allowed and the order passed by the learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, is modified to the extent that the respondent shall be entitled to the maintenance only w.e.f. 4.9.2008 when the decree for divorce was passed. 8. Accordingly, the present petition is partly allowed and the order passed by the learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, is modified to the extent that the respondent shall be entitled to the maintenance only w.e.f. 4.9.2008 when the decree for divorce was passed. Insofar as the order passed by learned Sessions Judge, Mandi is concerned, the same otherwise provides for enhanced maintenance from 6.11.2009 on which date the application was filed and therefore, calls for no interference because admittedly the same has been passed much after the decree of divorce. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any. Interim order passed by this Court on 27.11.2014 is vacated. The parties are left to bear their own costs. SUPREME COURT OF INDIA Before :- Jagdish Singh Khehar, CJI, Dr. D.Y. Chandrachud and Sanjay Kishan Kaul, JJ. Petition(s) for Special Leave to Appeal (Crl.) No(s). 10137 of 2015. D/d. 6.4.2017. Manoj Kumar - Petitioners Versus Champa Devi - Respondents For the Petitioners :- Ms. Nisha Priya Bhatia, Aftab Ali Khan, Advocates. For the Respondents :- Anil Nag, Arun Singh, Advocates. ORDER We have heard learned counsel for the rival parties at some length. 2. Having perused the impugned order [Manoj Kumar v. Champa Devi, Cr. MMO No. 230 of 2014. D/d. 9.4.2015 (H.P.)], we are satisfied, that the same is based on the two decisions rendered by this Court, firstly, Vanamala (Smt) v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299 , and secondly, Rohtash Singh v. Ramendri (Smt.) and others, 2000(3) SCC 180 . Section 125 of the Criminal Procedure Code, including the explanation under sub-section (1) thereof, has been consistently interpreted by this Court, for the last two decades. The aforesaid consistent view has been followed by the High Court while passing the impugned order. 3. For the reasons recorded herein above, we find no justification whatsoever, to interfere with the impugned order, in exercise of our jurisdiction under Article 136 of the Constitution. 4. The special leave petition is accordingly dismissed.