PADMANABHAN PRASADAN Vs. BHARGAVI SAROJINI

JUDGEMENT

(1.) THE revision petitioner was directed under section 125 of the Cr. P. C. by the Judicial Magistrate of First Class, Punalur in M. C. No. 12 of 1977 to pay maintenance at the rate of Rs. 50/- p. m. to his son (2nd respondent herein) born to him by his first wife wife (1st respondent herein ). Claim made by 1st respondents was negatived. THE respondents filed Crl. R. P. No. 101/78 before the Sessions Court, Quilon, seeking maintenance for the first respondent and seeking enhancement of maintenance for the 2nd respondent. THE earned Sessions Judge confirmed the order of maintenance passed in favour of the 2nd respondent, reversed the order of the learned Magistrate denying maintenance to the first respondent and directed the revision petitioner to pay maintenance at the rate of Rs. 50/- p. m. to her also. Liability to pay maintenance to the first respondent and the quantum awarded to her are challenged before me.

(2.) THE facts in so far as they are relevant for the purpose of this case, are undisputed. THE revision petitioner and the first respondent, both Hindus, were married according to the customary form obtaining in their community on 24-6-196 1. For a short while they lived together. THE 2nd respondent was born in the marriage. In 1962 they fell out on account of differences of opinion. On 11-5-62 they dissolved their marriage by entering into a divorce deed. Since then they have been residing separately. First respondent has been looking after second respondent and educating him. THE revision petitioner took a second wife and has two children by her. Parties proceed on the basis that the divorce deed, Ext. P2, put an end to the marital tie between them.

(3.) THE learned counsel for the revision petitioner, Sri t. P. Kelu Nambiyar, contended that in the decision reported in 1979 Ker LT 160 : (19-79 Cri LJ NOC 187) the intention of the Legislature was not investigated but only assumed erroneously. He also argued that a wife could become a divorcee in three ways, namely, by being divorced by the husband, by obtaining a divorce from the husband, and by putting an end to the marriage by mutual consent. According to him, the first two categories are within the purview of the definition of "wife" in Explanation (b) of Section 125 (1), while a wife falling in the third category is not attracted by the definition. He further contended that a "wife who is residing separately by mutual consent" is not entitled to maintenance under Section 125 (4) of the Code and a divorcee by mutual consent cannot be in a more advantageous position. THEse arguments have to be tested in the light of the avowed purpose of the provisions contained in Sections 125 and 127 of the Code and the provisions themselves.