Judgment:
V.B. Bansal, J.
(1) Subhash Verma 'has filed this petition thereby challenging the order dated 13.10.1993 of Shri O.P, Dwivedi, Additional Sessions Judge, Delhi, vide which the revision petition of Smt.Neelam was allowed and the learned Metropolitan Magistrate was directed to assess the quantum of maintenance payable to Smt.Neelam, petitioner No. 1.
(2) Briefly stated, the facts leading to the filing of the present petition are that Smt.neelam and her minor daughter Kumari Sonia (hereinafter referred to as the 'petitioners') filed a petition for maintenance against Shri Subhash Verma (hereinafter referred to as the 'husband') for maintenance under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'). Averments made in the aforesaid petition were that Smt.Neelam was married to Subhash Verma on 20.9.1977 according to hindu rites and she started residing with her husband. It was further pleaded that from the very beginning Subhash Verma started maltreating her and ultimately she was turned out of the matrimonial home in September, 1979 and while staying at the house of her parents she gave birth to adaughter, viz. Sonia, on 1.10.1979. It was also claimed that after sometime the husband filed a petition for divorce against the wife on the ground of desertion and ultimately a decree of divorce was passed on 22.9.1984. It was claimed that she was not having means to maintain herself and her daughter and the husband was neglecting them and, so, a claim was made for a sum of Rs.500.00 per month for the wife and a sum of Rs.500.00 per month for the daughter. ,
(3) The application was contested by the husband and ultimately vide order dated 27.2.1993 the husband was asked to pay maintenance to his daughter Sonia at the rate of Rs.200.00 per month from the date of application but the application of the wife for the grant of maintenance was dismissed on the ground that she was guilty of desertion, as was held by the matrimonial court and, thus, not entitled to maintenance.
(4) Learned Additional Sessions Judge came to the conclusion that the petition of the wife claiming maintenance was wrongly dismissed and, thus, accepted the revision petition and the case was remanded back to the learned trial court vide the impugned order.
(5) I have heard Shri Shiv Khorana, learned counsel for the petitioner and have also gone through the judgments.
(6) Learned counsel for the petitioner has submitted that the learned Additional Sessions Judge has gravely erred in setting aside the order of the learned Metropolitan Magistrate dismissing the petition of the wife for maintenance since she was responsible for having left the house of the husband without any valid ground and she refused to perform her obligation as a faithful wife. He has also submitted that the Civil Court has recorded a finding with regard to the wife having deserted her husband and it was on that ground that a decree for divorce was passed and that, in these circumstances, she forfeited her right to claim maintenance from the husband. He has also submitted that she having declined to perform her matrimonial obligations as a wife could not he allowed to take benefit of her own wrong and. thus, prayer has been made that the revision petition may be accepted and the order of the learned Additional Sessions Judge, may be set aside. He has placed reliance upon the judgment in case Raghbir Singh Vs Krishna 1 (1983) D.M.C. 150 and Gulam Jilani v. Sahera Bano and others 1 (1989) D.M.C. 245.
(7) It would, at this stage,be appropriate to quote the relevant portion of Section 125 of the Code, which reads as follows: Section 125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or 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 or such child, father or mother, at such monthly rate not exceeding five hundred rupees 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; Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until, she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanationn.:- for the purposes of this chapter,- (a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority; (b) 'wife' includes a woman who hs been divorced by, or has obtained a divorce from, her husband and has not re-married. (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.
(8) It is the admitted case of the husband that a decree for divorce was passed in his favor on a petition filed by him on the ground that the wife deserted him without any reasonable cause. The only question for consideration is as to whether there is any obligation on the part of the wife to continue residing with the husband after a decree of divorce and is she expected to perform her obligations as a wife. The answer would depend upon Clause (b) of the proviso, referred to above. After divorce the relationship of husband and wife comes to an end and both the parties are free to enter into another marriage, which would be valid. However, for the purpose of maintenance a divorced wife would still be included in the term of wife, as is apparent from Clause (b) of proviso to Section 125(1), referred to above. A bare reading of this Clause shows that the term 'wife' includes a woman who has been divorced by or has obtained a divorce from her husband and has not re-married. Thus, in spite of the fact that the divorce has been obtained by the husband on account of desertion by the wife, she would continue to be a wife of the husband for the purpose of maintenance. It cannot be .said that she is trying to get undue advantage of her own deeds, in as much as, she has refused to perform her obligations as a faithful wife by deserting the husband, without any reasonable cause and, thereafter, starts claiming maintenance. The facts required to be proved by such wife for claiming maintenance are that she has not re-married and, so, unable to maintain herself. Husband could also avoid the payment of maintenance on the ground that she was living in adultery.
(9) The judgment in Raghbir Singh v. Krishna (Supra) relief upon by the learned counsel for the petitioner, in my view, is not applicable to the facts of the present case and, thus, cannot be of any help to the petitionher. A perusal of the judgment clearly shows that the wife was unable to show sufficient cause for living separately from the husband and she had failed to establish that the husband had neglected or refused to maintain her. It was held that the right of the wife to be maintained by the husband stems from the performance of the marital duty and a wife who is not prepared to do that cannot claim maintenance under the Statute. In that case the marriage between the husband and the wife was continuing and had not been dissolved. In these circumstances, it was held that the wife is bound to perform her marital duties in order to claim maintenance.
(10) A bare perusal of the judgment in Munnibai v. Lok Prakash 1 (1989) D.M.C. 249 shows that the marriage between the petition and respondent No. 1 was still continuing and the respondent No.2 was born out of this wedlock. It was also claimed that she went to the house of her parents about five years prior to the filing of the application for maintenance and, thereafter, continued residing with her parents. This plea was controverter by the husband, who claimed that in spite of his best efforts she did not return to her matrimonial home and that a decree for restitution of conjugal rights, obtained by him, could not be of any help and assistance to her as she did not return to her matrimonial home even after the said decree. Considering all the facts, it was held that the wife was not entitled to claim maintenance from the husband when she was living separately from her husband without legitimate reasons. In the said case marriage was subsisting while in the case in hand the-relationship of husband and wife has come to an end except for the purposes of wife being eligible to claim maintenance on proving the requirements as laid down under Section 125 of the Code.
(11) A divorced 'wife cannot be expected to live with her previous husband nor is she expected to perform her matrimonial obligations. I find support for this view from the case Shahzadi Begum Vs . Mohd. Abdul Gaffar . ln case Mampekket Nanu v. Mampekket Vasantha and another 1985 12 H.L.R. 176 it has clearly been held that regardless of the fact as to who moved a petition for divorce, a divorced wife would be covered within the ambit of the term 'wife' and, thus, entitled to claim maintenance in terms of Section 125 of the Code. Similar was the view expressed in case Raj Kumari v. Rajinder Lal Mehta 1985 12 H.L.R. 248 and Balau v. Visalakshy 1985 12 H.L.R. 448.
(12) Keeping in view my aforesaid discussion, I do not find any illegality or infirmity in the impugned order and there is no scope even for admission of the petition.
(13) As a result the petition stands dismissed in limini.