| SooperKanoon Citation | sooperkanoon.com/724282 |
| Subject | Criminal |
| Court | Kerala High Court |
| Decided On | Jun-11-1985 |
| Judge | S. Padmanabhan, J. |
| Reported in | 1985CriLJ1558 |
| Appellant | Velukutty |
| Respondent | Prasannakumari |
S. Padmanabhan, J.
1. The revision petitioner is the husband and the counter petitioner is his divorced wife. At a time when the marital relationship was subsisting the counter petitioner filed M. C. No. 81 of 1978 for maintenance against the petitioner for herself and her minor child under Section 125 of the Criminal Procedure Code before the Judicial First Class Magistrate, Calicut. The Magistrate refused maintenance to the counter petitioner accepting the contention of the petitioner that she is residing separately without justifiable reasons. Maintenance was allowed to the child alone. That order was not challenged by any other proceedings and it has become final,
2. Thereafter alleging desertion by the petitioner the counter petitioner filed O.P. No. 239 of 1980 before the District Judge, Kozhikode for judicial separation under Section 10(1)(a) of the Hindu Marriage Act. That petition was allowed and judicial separation was ordered. Then the petitioner filed O.P. No. 69 of 1982 before the same court for dissolution of the marriage under Section 13(1)(a)(i) of the Hindu Marriage Act alleging that they have not resumed cohabitation after the order for judicial separation. In that O.P. the counter petitioner filed LA. No. 913 of 1984 for interim alimony. That was allowed and interim alimony was granted till the date on which dissolution was ordered. The marriage was dissolved by the order in that O.P.
3. Thereafter the counter petitioner filed M. C. No. 18 of 1984 before the Additional Judicial First Class Magistrate, Calicut claiming maintenance from the petitioner in her capacity as divorced wife. The petitioner opposed that claim; but the Magistrate allowed the petition and ordered monthly maintenance at the rate of Rs. 150/-. The revision petition has been filed against that order.
4. Various grounds were raised by the revision petitioner's counsel in support of his contention that the order for maintenance passed by the Magistrate cannot be legally sustained. Under explanation (b) to Section 125(1) of the Code, for the purposes of Chapter IX of the Criminal Procedure Code:
wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
It is under this extended definition that the counter petitioner has approached the Magistrate, after the order for divorce, claiming maintenance against the petitioner. The main contention of the revision petitioner was that when once the claim of the counter petitioner for maintenance was refused on the ground that she is not justified in having a separate residence, a subsequent claim for maintenance, on whatever ground it is made, cannot be entertained even if the claim comes after divorce. The reasons alleged are (1) the bar under the earlier order disallowing maintenance to her continues even now because even now she is refusing to come and reside along with the petitioner for no valid reason in spite of the earnest efforts made by him to persuade her to come and reside with him and (2) the extended definition of 'wife' under explanation (b) to Section 125(1) is for purposes of the whole of Chapter IX and hence whenever and wherever in that Chapter any rights, liabilities, disqualifications, etc. are provided in favour of or against a 'wife' they must be applicable to 'wife' as defined in the above explanation also. I am sorry that 1 am not at all convinced of the reason or propriety behind the contentions.
5. Explanation (b) to Section 125(1) is only on inclusive definition. Without that definition a woman who has been divorced by, or who has obtained a divorce from, her husband would not have been entitled to claim maintenance from a person who was her former husband. But for the definition a woman whose marital relationship is subsisting alone would have been entitled to claim maintenance because one could claim as a wife only during the subsistence of a valid marriage. When that relationship is terminated the status as wife goes and the rights attached to the position of a wife also goes. By the extended definition, now for the purpose of Chapter IX, there are two categories of wives, those who are continuing as wives and those who are not, but not remarried. That does not mean that even for the purposes of Chapter IX all the rights, duties, disqualifications, etc. provided for or against a wife must be made applicable to a divorced wife. That will depend upon the applicability of a relevant provision in the case of a divorced wife. Some of the provisions in Chapter IX may be applicable only to a wife whose status as wife is subsisting and some others may be applicable only to a divorced wife, while some other provisions may be applicable to both.
For example the provisions of Section 127(1) regarding alteration in the maintenance allowance already ordered on proof of change in circumstances may be applicable to both. The provisions for cancellation of the order for maintenance in favour of a wife contained in Section 127(3) are applicable only in the case of a divorced wife and it is so clearly provided also. That shows whenever necessary the legislature has in its wisdom made specific provisions exclusively applicable only to a divorced wife. There is no meaning in contending that all the provisions of Chapter IX are indiscriminately applicable equally to both.
6. The cause of actions in favour of a wife and a divorced wife for claiming maintenance from the husband and the former husband are distinct and independent of each other. All the disabilities attached to a wife from claiming maintenance and all the grounds applicable in her case for cancellation of the order for maintenance are not applicable in the case of a divorced wife. The reasons are clear. They are having different status, position, rights and responsibilities. Rejections of the claim of a wife for maintenance on grounds available to the husband during the subsistence of marriage may not be available against her after divorce. After divorce she gets a fresh and distinct cause of action for claiming maintenance in her new status under the extended definition, unconnected with her previous rights. The rejection of her petition for maintenance during subsistence of the marriage on grounds not available against her after divorce cannot affect her new claim which is independent of the former.
7. Section 125(3) provides for remedies in cases of failure without sufficient cause to comply with the order for maintenance. Second proviso to that sub-section says that if the person against whom there is an order for maintenance offers to maintain his 'wife' on condition of her living with him, and she refuses to do so, the magistrate may consider the grounds of refusal and make orders. Section 125(4) provides that no wife shall be entitled to receive maintenance allowance under the Section if she is living in adultery, or if, she refuses to live with her husband without sufficient reason, or if they are living separately by mutual consent. By Sub-section (5) to section 125 on the same grounds an order for maintenance passed in favour of a wife could be cancelled. Whether a divorced wife who is living in adultery is bound by Sub-sections (4) & (5) is not a matter to be considered in this case because such a contention is not there. Petitioner's case is that though he offered to maintain the counter petitioner and persuaded her to come and reside along with him, she is refusing to do so without lawful excuse and hence she cannot claim separate maintenance.
8. In my opinion the two grounds namely refusing to live with the husband without sufficient reason and living separately by mutual consent are not applicable in the case of a divorced wife. Normally divorced spouse will only be living separately and the question whether it is by mutual consent or not does not arise. Obligation to live with the husband and sufficient reason for refusing to live with the husband will arise only during subsistence of the marriage. The bona fides of the husband in the offer to maintain the divorced wife if she comes and lives with him itself is not a matter to be considered even though patently the mala fides is clear from the fact that divorce is ordered at his instance. After divorce the wife is not bound to discharge marital obligations including her company and submission to conjugal rights of the husband. The husband has equally no right to request her to come and reside along with him as a condition precedent to payment of maintenance. Marital rights and obligations are available only during the subsistence of the marriage. There is no question of showing good grounds for separate residence. The contention of the petitioner that even after divorce the parties could agree to reunite and live together is not one which deserves consideration. Such a reunion depends on mutual consent alone and the fifty per cent so called consent of the petitioner alone is not sufficient. As already stated by me I am not considering the ground of adultery occurring in Sub-sections (4) and (5) of Section 125 because there is no such ease. The other ingredients of Sub-sections (4) and (5) and the second proviso to Sub-section (3) of Section 125 are applicable to 'wife' mentioned therein only if her marriage is subsisting and not in the case of a 'wife' as defined in explanation (b) to Section 125(1),
9. The provision to award maintenance by a summary procedure to a divorced wife has been incorporated in the new Code by way of public policy in order to avoid vagrancy. The only disqualifications provided in the case of a divorced wife are remarriage and ability to maintain herself. Evidently these two conditions are there because they are not inconsistent with the public policy. She need not satisfy any other condition to make herself eligible for maintenance and the husband cannot impose any condition in order to avoid liability. To ask for the company of a divorced wife and make it a condition precedent for the liability for maintenance is opposed to the entire provisions. Of course 'having sufficient means neglects or refuses to maintain' occurring in Section 125(1) may be applicable even in the case of a divorced wife. But that question also does not arise here because there is no such contention. So also there is no case that the counter petitioner has remarried or that she is capable of maintaining herself.
10. Barring refusal to come and reside along with him without sufficient reason, the only other contention raised by the petitioner is that counter petitioner was given interim alimony in O.P. 69 of 1982 on the file of the District Judge, Kozhikode, It may be true that the counter petitioner filed LA. No. 913 of 1982 in that case claiming interim alimony under Section 25 of the Hindu Marriage Act and the Court might have allowed interim alimony till the date of ordering divorce as contended. The contention is that she opted maintenance under the Hindu Marriage Act and hence she is not entitled to claim further maintenance under Section 125 of the Criminal Procedure Code. Even if interim alimony has been claimed and granted as alleged that was admittedly only an interim arrangement till the disposal of the petition for dissolution of marriage which has nothing to do with the claim under Section 125 of the Code.
The revision petition fails and it is hereby dismissed.