Full Judgment
V.S. Kokje, J.
1. This is an application under Section 482 of the Code ofCriminal Procedure, challenging the order dated 7.2.1991 passed by the III Ad-ditional Sessions Judge, Shajapur, confirming the order dated 9.5.1989 passedby the Judicial Magistrate First Class, Shajapur in a case under Section 125 of theCr. P.C.
2. The applicant wife came before the Court alleging that she wasmarried to the non-applicant in the year 1981. In the year 1986 she was deserted by her husband. On 8.3.1987 the non-applicant took another wife. Theapplicant initiated proceedings under S. 13. of the Hindu Marriage Act on10.3.1987 and because of a settlement out of Court on 11.12.87 the marriagestood dissolved. The applicant has further contended that she is not able tomaintain herself and the non-applicant has sufficient sources to maintain herbut is neglecting to do so.
3. The application has been mainly contnded on the ground that theapplicant has accepted Rs. 1500/- by way of full and final settlement towardsall the claims arising out of the marriage and was, therefore, disentitled forclaiming maintenance. Reliance has been placed heavily on Ex. D-l, which isan application moved before the divorce court by both the parties. In para 1of this application it is stated that the parties have entered into a compromiseon the advice of people and the applicant had obtained a sum of Rs. 1500/-before the Court and no amount what-so-ever was due against the non-appli-cant. It is contended that the case squarely falls within sub-section 4 of S. 125of the Cr.P.C which disentitles a wife to receive an allowance from her husbandunder S. 125, if the husband and wife are living separately by mutual consent.Both the Courts have accepted the plea of the non-applicant and have rejectedthe claim for maintenance solely on the ground that the applicant had relinqui-shed all her rights by accepting a sum of Rs. 1500/- at the time of dissolution ofmarriage.
4. Having heard Shri P.K. Saxena, the learned Counsel for the appli-cant and Shri Jaisingh, the learned Counsel for the non-applicant, I find thatboth the Courts have misdirected themselves and have not read the evidencein the case properly. Ex. D-2, the proceedings dated 11.12.1987 of the divorceCourt show that the parties had entered into a settlement out of Court and onthat basis the application was rejected Thus, there is neither the grant ofdivorce by the Court nor recognition of it by the Court. However, both theparties did not dispute the fact of dissolution of marriage between the parties.Therefore, we need not go into the validity of divorce. We have to proceed onthe assumption that the applicant is a divorced wife of the non-applicant. Theonly question for consideration is, therefore, whether by accepting Rs. 1500/-as a lumpsum payment, the applicant has given up her right to claim mainte-nance and whether the applicant was living separately by mutual consent of theparties. It would be interestingto note that in Ex. D.1 itself para 3 was typed,which put a condition that the criminal cases going on between the partiesshall be got dismissed by the parties. This para 3 was scored out and non-applicant Vishramsingh has initialed this deletion. This clearly shows the inten-tion of the parties and indicates that though Vishramsingh wanted to insert thiscondition, but the applicant Molyabai did not agree to do so. The acceptanceof Rs. 1500/- was, therefore, clearly in lieu of all claims which were raised inthat divorce case and did not affect the rights of the parties in other cases. Theintention of the parties was clearly to confine the compromise to the divorcelitigation alone and not to extend it to all other disputes between them. Molya-bai in her statement had denied the suggestion that she had accepted Rs. 1500/-from the non-applicant. She had even denied having executed any documentlike Ex.D.l. The non-applicant Vishramsingh has not stated in his statementthat on Ex. D. 1. Molyabai had put her thumb impression before him. He haddenied his signatures 'A.' to 'A' and 'B' to 'B' part of Ex. D. 1, which arein lieu of scoring out para 3. He has tried to improve upon the written docu-ment Ex. D.1 by adding the condition contained in para 3, which was scoredout In the result Ex. D.1, which is executed on a non-judicial stamp of Rs..5/-,though styled as an application before the divorce court has not been proved. Even otherwise, it does not seem to be a reliable document when Molyabaihaving not accepted having put her thumb impression on it, and anyone elsehaving not proved her thum impression on the document. The non-applicantwho is pressing this document in service, has himself admitted it to be a tamper-ed document so far as scoring out para 3 is concerned and his initials in lieu ofparagraph 3 is concerned. There is no explanation also as to why this so-calledapplication was not filed in the Court and was typed on non-judicial stamppapers. The document cannot, therefore, be acted upon and taken into conside-ration in this case. There being no other evidence on the point, it has to be takenthat even if it is assumed that Rs. 1500/- were taken by the applicant from thenon-applicant the same was not in lieu of forgoing the claim for maintenance infuture.
5. Shri Jaisingh also contended that it is clear from the record that ithas not been proved legally that divorce has taken place .between the partiesand that the parties were living separately by mutual consent. He, therefore,submitted that in view of Sub-section 4 of S. 125, the applicant was not entitledto maintenance. The Supreme Court has in Bai Tahira v. Ali Hussain FissalliChothia and Another (A.I.R. 1979, SC 362) has laid down that a divorced wife isotherwise legally entitled to maintenance allowance and the dissolution ofmarriage makes no difference to this right. In the same case the Supreme Courthas also observed as follows :
'The next submission is that the absence of mutual consent tolive separately must be made out if the hurdle of S. 125(4) is to beovercome We see hardly any force in this plea. The compulsiveconclusion from a divorce by a husband and his provision of aseparate residence as evidenced by the consent decree fills the bill.Do divorces have to prove mutual consent to live apart Divorcepainfully implies that the husband orders her out of the conjugalhome. If law has nexus with life this argument is still-born.'
6. In the present case on the pleadings of the parties, it is clearthat a divorce has taken place between the parties and the parties areliving separately because of the divorce. It cannot therefore, be said that theyare living separately by mutual consent as husband and wife and, therefore, theapplicant is disentitled from receiving maintenance. Though the definition ofwife by virtue of Explanation-B to S. 125(1) includes a woman who has beendivorced by or has obtained a divorce from her husband and has not re-married,in the very nature of things, in Sub-section 4 of S. 125, the word 'wife' so faras the question of living separately by mutual consent is concerned, cannot besaid to include a divorce wife also. Reading in the proper context, a wife whohas been divorced by her husband, or has obtained a divorce from her husbandand has not remarried, is by the very fact of divorce, has to live separately fromher husband, she is not expected at all to live with her husband and, therefore,the question of her living separately by mutual consent does not arise. Consentto live separately is required only when there is an obligation to live together.When the obligation to live 'together itself has come to an end living separatelyon a divorced couple cannot be said to be living separately by mutual consentfor the purpose of Sub-sec. 4 of S. 125 disentitling the divorced wife from claim-ing maintenance. The very purpose of the Explanation B to sub-section (4) of S.125 of the Cr.P.C. shall be defeated it a divorced wife is expected to live or intaken to be living separately from her husband by mutual consent. The harmoni-ous construction of the two provisions can only be that a divorced wife shallnot be deemed to be living separately from her husband by mutual consent, shehas to be taken to be living separately from her husband under the compulsionof failure of her marriage which is acknowledged by the decree of divorce.
7. In the result, the refusal by both the Courts below to entertain theapplication of the applicant on the ground that she had accepted a sum of Rs.1500/- as full and final settlement of her claims cannot be upheld. The claimof the non-applicant that the applicant is disentitled from claiming maintenancebecause of the provisions of S. 125(4) of the Cr.P.C. as she was living separatelyfrom her husband by mutual consent is also not tenable. The learned trialMagistrate has not decided the quantum of maintenance in view of the factthat he decided that the application was not tenable. The judgment of the trialMagistrate as well as that of the Sessions Court is set aside. The trial Magis-trate shall now decide the quantum of maintenance on the basis of the evidencealready on record after hearing arguments of the parties. This shall be donewithin two months from the date of appearance before trial Court The partiesshall appear before the trial Magistrate on 23.10.1991 for the purpose of fixinea date for arguments. The record be transmitted to the lower court immediately.