VANAMALA Vs. H M RANGANATHA BHATTA

JUDGEMENT

(1.) Special leave granted.

(2.) The facts in brief reveal that the appellant married the respondent sometime in 1970 and then gave birth to two issues from the said wedlock. Unfortunately, her married life was not smooth and in 1980 divorce by mutual consent was obtained under section 13-B of the Hindu Marriage Act. While granting divorce by mutual consent, no order in regard to maintenance or alimony was made. The decree is silent on that Court. Few years later the appellant filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') seeking maintenance from the respondent. The learned Magistrate dismissed the application holding that a divorcee woman was not entitled to maintenance once it is found that the divorce was by mutual consent. Against that order the appellant filed a revision application to the Sessions Court. The learned Session Judge came to the conclusion that the appellant was entitled to maintenance notwithstanding the divorce by mutual consent and remanded the matter to the trial Court for determining the quantum of maintenance. Against this order of the learned Sessions Judge, the respondent preferred a revision application before the High Court and the High Court by the impugned judgment and order dated 19-8-1991 set aside the order of the learned Sessions Judge upholding the view taken by the learned Magistrate and dismissed the application. It is against that order that the present appeals has been preferred.

(3.) Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain 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 not exceeding Rs. 500 in the whole, as such Magistrate thinks fit, ad to pay the same to such person as the Magistrate may from the time to time direct. Clause (b) of the explanation to the sub-section defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above the would, therefore, be entitled to maintenance, if she could show that the respondent had neglected or refused to maintain her. Counsel for the respondent, however, invited our attention to sub-section (4) of section 125, which reads as under: