Samarendra Pratap Singh, J.
1. Whether divorce by way of mutual consent will debar a divorced woman to receive maintenance under Section 125 Cr.P.C. is the core question in this application. Before I deal with the issue in hand the facts of the case is being noticed in brief.
2. The O.P. No. 2, namely, Rinku Devi, was married to the petitioner in the year 1995 at Gaya. On account of estrenged marital life, the O.P. No. 2 had to desert her matrimonial house. In the year, 2000 the petitioner filed a matrimonial suit under Section 9 of the Hindu Marriage Act being Matrimonial T.S. No. 86 of 2000. In the year, 2001 O.P. No. 2 filed a Complaint Case under Sections 498A, 323 and 406 of the I.P.C. and Section 3/4 of Dowry Prohibition Act bearing Complaint Case No. 56 of 2001. Thereafter, she filed the instant maintenance case under Section 125 Cr.P.C. in the year 2001, being Misc. Case No. 27 of 2001.
3. The O.Ps. appeared in M. Title Suit No. 86 of 2000 and prayed that the instant case be amended to one under Section 13 of the Hindu Marriage Act for divorce. In the aforesaid matrimonial suit the O.P. No. 2 stated that she is consenting for the divorce in order to save her life from the petitioner. Consequently a decree of divorce was granted on 17.4.2004 by way of mutual consent.
4. In the meantime the petitioner filed an application under Section 482 Cr.P.C. before this Court being Cri. Misc. No. 25042 of 2004 for quashing the order dated 20.4.2001 taking cognizance in the aforesaid Complaint Case No. 56 of 2001. A bench of this Court vide order dated 19.5.2006, noticing the mutual divorce decree in Matrimonial Suit No. 86 of 2000, quashed the entire criminal prosecution contained in Annexure-6.
5. However, the proceeding under Section 125 Cr.P.C. proceeded and the learned Family Judge, vide his order dated 6.7.2007, passed in aforesaid miscellaneous case which was renumbered as Misc. Case No. 71 of 2005 / 27 of 2001, passed final order directing payment of maintenance of Rs. 500/- to each of the opposite parties. In other words, the Family Court directed that the petitioner should pay a sum of Rs. 500 to his wife Rinku Devi and Rs. 500/- to each of the two minor children with effect from 6.7.2007, the date of passing of the order.
6. The petitioner has assailed the aforesaid order also on the ground that as O.P. No. 2 has effected divorce by mutual consent and living separately, she would not be entitled to maintenance under Section 125(4) of Cr.P.C.
7. The learned Counsel in support of his contention has relied upon a decision in a case of Manayiah, petitioner Smt. G.S. v. Smt. G. Sakuntala Kri and Ors. (respondents) reported in : ILR1997KAR754 .
8. In the aforesaid case the husband and the wife entered into an agreement that they would divorce each other with mutual consent. Pursuant to the agreement they began to live separately. The wife thereafter filed an application under Section 125 of Cr.P.C. for grant of maintenance. The learned Judge rejected the plea of the petitioner for maintenance under Section 125(4) of Cr.P.C., as the marriage still subsisted in absence of any divorce.
9. On the oilier hand, learned Counsel for the opposite parties submits that the aforesaid Section 125(4) would not apply in case of a woman who is living separately after divorce even if the same is affected with mutual consent. He states that even prior to divorce, she lived separately as she was compelled to live so, on account of act of cruelty of her husband and others. He submits that it is very obvious that after divorce a woman necessarily lives separately. In support of his contention learned Counsel for the O.Ps. has relied upon a decision reported in case of Rohtash Singh v. Smt. Ramendri and Ors. reported in : 2000CriLJ1498 , as well as in case of Vanamala v. H.M. Ranganatha Bhatta reported in : (1995)5SCC299 .
10. In the back drop of the aforesaid norms and principles, I proceed to examine the issue in hand. Section 125 Cr.P.C. relates to grant of maintenance to wives, children and parents. As per Explanation (6) to proviso of Section 125(1) Cr.P.C., wife would include a divorced woman also.
11. In order to appreciate the issue, Section 125(4) of Cr.P.C. is being quoted hereinbelow for easy reference:
Section 125(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.
12. Section 125(4) Cr.P.C. states that a wife will become disentitled to receive maintenance, 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. Thus, a wife would forgo her claim for maintenance, if she lives separately from her husband with mutual consent. The aforesaid condition is obviously referred in context of subsisting marriage. In no circumstances it could be interpreted to be used in context of divorced woman. If latter construction is given, the object and purpose of the provision would become meaningless and redundant, as a couple who get a divorce necessarily lives separately. At times when living together becomes impossible, couple seek divorce with mutual consent to facilitate a decree of divorce, in order to avoid the routine process.
13. Divorce by mutual consent and consent to live separately prior to divorce arc two different things. If a woman prior to divorce lives separately by a mutual consent, then she becomes disentitled to maintenance under Section 125(4) Cr.P.C. After divorce there is no need of any mutual consent to live separately. A divorce in fact separates a wife from her husband and separateness is explicit in divorce itself.
14. The apex Court in case of Rohtash Singh v. Ramendri and Ors. reported in A.I.R. 2000 S.C. 953, has held that after decree of divorce a woman is under no obligation to live with the husband. Though the marital relation come to an end by divorce granted by the court, still the divorced woman continues to be wife for limited purpose under Explanation 6 of Section 125 of Cr.P.C. for claiming maintenance allowance from her husband. Further more, the apex Court in case of Vanamala v. H.M. Ranganatha Bhatta (supra) has held that Section 125(4) of Cr.P.C. would not be applicable to a woman who has obtained divorce by mutual consent.
15. In the instant case, there is no material on record to show that the woman was living separately by mutual consent before divorce. The O.P. No. 2, the wife does not suffer from disability provided under Section 125(4) of Cr.P.C. As such the opposite party is not disentitled to solicit maintenance under Section 125(4) of Cr.P.C. and would be entitled to continued maintenance, till she marries or becomes capable of maintenance herself.
16. This takes us to the final issue, whether the maintenance of a sum of Rs. 500/- awarded by Principal Judge to each of the three applicants is excessive.
17. The complainant examined three witnesses in support of her contention. The opposite party examined three witnesses in support of his assertion that he earns Rs. 1200 - 1300 per month from the a jewellery shop. However, P.W.1 has stated that petitioner Santosh Prasad earns Rs. 1500/- per month.
18. The trial court has noted that opposite party No. 2, the petitioner herein, admits that he is the only son of his parents and his father has built a house near Naiki Talab. He also admits that he has got another ancestral house, which is not yet partitioned. Besides this he works as jewellery maker in a shop, and according to him he only earns Rs. 1200 - 1300/- per month.
19. The learned court thus granted a sum of Rs. 500/- to each of the opposite parties.
20. Having considered the facts of the case, this Court is of the view that amount of maintenance fixed by trial court is not very excessive. However, in view of the materials on record it would be suffice, if the amount of maintenance granted to the opposite parties is reduced to Rs. 1400/- in all. The children would be paid maintenance at the rate of Rs. 450/- each, and the wife at rate of Rs. 500/- per month. The petitioner must pay the arrears of the maintenance within three months.
21. With the aforesaid observation this application is dismissed.