Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
05. 08.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRL.RC.(MD)No.26 of 2015 and M.P.No.1 of 2015 R.Mathialagan : Petitioner Vs. V.Ravichandrika : Respondent PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, to call for the records in pursuance to the order dated 04.12.2013, passed in M.C.No.39 of 2011, passed by the learned Family Court, Madurai and set aside the same and allow this Criminal Revision Case. [Date of reserving the Judgment - 30.06.2015]. [Date of pronouncing the Judgment - 04.08.2015]. !For Petitioner : Mr.M.Karthikeya Venkatachalapathy ^For Respondent : Mr.Gnanasekaran Legal Aid Counsel :ORDER
The petitioner is the husband of the respondent herein. The marriage between them was solemnized on 12.09.1991. They have got a male child born on 09.12.1997. Thereafter, there there was no love-lost between them. The petitioner filed H.M.O.P.No.119 of 2007, before the Family Court, Madurai, seeking divorce to dissolve the marriage between him and the respondent on the ground that the respondent had deserted him voluntarily and she was not willing to live with him, without any sufficient cause. The Trial Court, by Judgment and Decree, dated 01.06.2010, granted divorce, accepting the plea of the petitioner. While granting divorce, the Family Court directed the petitioner to pay a sum of Rs.750/- per month as alimony. The said order has become final. Subsequently, the respondent filed M.C.No.39 of 2011, before the Family Court, Madurai, claiming maintenance, at the rate of Rs.6,000/- per month, under Section 125 of the Code of Criminal Procedure, [for brevity, "the Code"].. The Family Court, by order dated 04.12.2013, allowed the said petition directing the petitioner to pay a sum of Rs.2,000/- per month to the respondent towards her maintenance. Challenging the same, the petitioner has come up with the present Criminal Revision Case.
2. I have heard the learned counsel appearing for the petitioner. Since the respondent had not appeared, despite service of notice, this Court appointed Mr.D.Gnanasekaran, as Legal Aid Counsel, to argue the case on behalf of the respondent. I have heard him also and perused the records carefully.
3. The main contention of the learned counsel for the petitioner is that since there was a decree for divorce granted by the Family Court, on the ground of desertion, the respondent is not entitled for maintenance under sub-section 4 of Section 125 of the Code.
4. But, the learned counsel appearing for the respondent would submit that sub-section 4 of Section 125 of the Code is applicable only to a wife whose marriage is still in subsistence and the said provision is not applicable to a wife whose marriage has already been dissolved. For this proposition, the learned counsel would rely on the Judgment of the Hon'ble Supreme Court in Rohtash Singh Vs. Ramendri [Smt]. and others, reported in 2000 (3) SCC180 5. At the first, let us have a quick look into sub-section 4 of Section 125 of the Code, which reads as follows:- (4) No wife shall be entitled to receive an allowance from her husband under this section 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.
6. A perusal of the said provision would go to show that a "wife", who refuses to live with her husband, without any sufficient reasons, is not entitled for maintenance under sub-section 4 of Section 125 of the Code. The term "wife" has been defined by means of Explanation 'b' to sub-section 1 of Section 125 of the Code, which states that "Wife includes a woman who has been divorced or has obtained a divorce from her husband and has not remarried". Thus, for the purpose of Section sub-section 1 of Section 125 of the Code, the term "wife" includes a divorced wife also. It is on this premise, the learned counsel for the petitioner would submit that sub-section 4 of Section 125 of the Code is applicable to a divorced wife also. But, a perusal of the Judgment of the Supreme Court in Rohtash Singh's case, cited supra, would go to show that the Hon'ble Supreme Court has found two parts in sub-section 4 of Section 125 of the Code. The Hon'ble Supreme Court has also held that the claim for maintenance under the first part of sub-section 4 of Section 125 of the Code 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 of the Code. The Hon'ble Supreme Court further went on to say that if the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance.
7. The Hon'ble Supreme Court has also held that a wife, after divorce, becomes a destitute and if she cannot maintain herself or remains unmarried, the man, who was, once, her husband, continues to be under a statutory duty and obligation to provide maintenance to her. The Hon'ble Supreme Court has further held that so far as the wife whose marriage is still in subsistence, if she refuses to live with her husband, which is her matrimonial obligation, then, she is not entitled for maintenance. To that extent, it is crystal clear that when sub-section 4 of Section 125 of the Code is applicable to a wife whose marriage is in subsistence. But, for a divorced wife, there is no moral or statutory obligation to live with her husband. Therefore, for a divorced wife to claim maintenance under Section 125 of the Code, even if the divorce is on the ground of desertion, it is not a bar for her to claim maintenance under Section 125 of the Code, as sub-section 4 of Section 125 of the Code is not applicable.
8. In Rohtash Singh's, in Paragraph No.11, the Hon'ble Supreme Court has held as follows:-
"10. Claim for maintenance under the first part of Section 125 CrPC 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 CrPC. 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 the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.
11. Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her".
9. The above conclusion of the Hon'ble Supreme Court is founded on the ground that so long as the marriage is in subsistence, since there is a statutory obligation for the wife to live with her husband and since she refuses to live with the husband, without assigning any reason, she is not entitled for maintenance under Section 125 of the Code. The Hon'ble Supreme Court has further clarified that after the decree is passed for divorce on the ground of desertion, since there is no legal obligation for the wife to live with the husband, sub-section 4 of Section 125 of the Code is not applicable and therefore, for the period commencing from the date of divorce, she is not entitled for divorce and for the period from preceding decree for divorce, she is not entitled for maintenance. In the instant case, the divorce was granted on 11.06.2010, whereas the petition for maintenance was filed only on 30.05.2011. Therefore, from 30.05.2011 onwards, she would be entitled for maintenance under Section 125 of the Code, though the marriage was dissolved by means of decree for divorce on the ground of desertion by the respondent.
10. Now, turning to the quantum of maintenance ordered already, as per the order of the Family Court, the petitioner has to pay a sum of Rs.750/-. The petitioner has got no fixed income. He is only an Astrologer by profession. The Lower Court has estimated his normal income at Rs.10,000/- per month. In my considered view, in the absence of any evidence to prove the income of the petitioner, simply by taking into account the fact that the petitioner is an Astrologer, the Lower Court ought not to have arrived at a conclusion that his monthly income would have been Rs.10,000/-. Going by the normal earnings of a man of his stature, at the most, he can be directed to pay a sum of Rs.1,000/- per month as maintenance, in addition to a sum of Rs.750/-, which has already been ordered by the Family Court, Madurai, in H.M.O.P.No.119 of 2007. To that extent, the order of the Lower Court deserves to be modified.
11. In the result, the Criminal Revision Case is partly allowed, the impugned order dated 04.12.2013, made in M.C.No.39 of 2011, passed by the learned Family Court, Madurai, is modified and the petitioner is directed to pay a sum of Rs.1,000/- per month towards maintenance of the respondent from the date of petition, in addition to a sum of Rs.750/-, which has already been ordered to be paid by the petitioner in H.M.O.P.No.119 of 2007. Consequently, connected Miscellaneous Petition is closed. Before parting with this case, I record my appreciation for the service rendered by Mr.Gnanasekaran. The Legal Services Authority is directed to pay remuneration to Mr.Gnanasekaran, the learned counsel, who has been appointed as legal aid counsel to argue the case on behalf of the respondent. To 1.The Family Court, Madurai. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .