K. SHANMUKHAN Vs. G. SAROJINI

JUDGEMENT

(1.) THIS revision is directed against the order of the 1st Additional Sessions Judge, Quilon in Criminal R. P. No. 16 of 1979 allowing maintenance at the rate of 40/ - per mensem to the respondent herein as payable by the revision -petitioner. The respondent had filed M. C. 89/78 before the Chief Judicial Magistrate, Quilon seeking maintenance and the same was dismissed accepting the contentions raised by the revision petitioner.

(2.) THE parties were married on 9 -11 -1966 and a child was born in the marriage. In an earlier proceeding M. C. 82/70, maintenance at the rate of Rs. 15/ -per month was ordered to the child, to be subsequently increased to Rs. 30/ -per month. The marriage between the spouses was dissolved in 1973 under Ext. D -l document. The divorce is accepted as legal by both sides. The learned Magistrate disallowed maintenance to the divorcee -wife on the ground that she was living separately by mutual consent and that at the time of divorce a sum of Rs. 3,000/ - was promised to her as compensation under the Travancore Ezhava Act. This order was reversed by the learned Sessions Judge who held that as a divorcee -wife she is entitled to maintenance and Section 127(3)(b) of the Cr. P.C. will not apply since the payment, though promised, was not actually made.

(3.) THE first contention does not deserve any notice since the decision of the Full Bench is binding on me. The Full Bench has held that the restrictions imposed under Section 125, Clauses (4) and (5) of the Code are not applicable to a divorcee -wife, but will apply only to a wife whose marriage is subsisting. Learned counsel for the revision petitioner would contend that the provision in Section 125(1), Explanation (b) that 'wife' includes a divorcee -wife must mean that under all circumstances and in all contingencies a wife (in the strict sense) and a divorcee -wife must be treated equally in the eye of the law and since restrictions under Sections 125(4) and (5) of the Code as interpreted by the Full Bench are not applicable to a divorcee -wife, those clauses are hit by Article 14 of the Constitution. Assuming this contention to be true, it is not going to help the revision petitioner because at best those provisions may be struck down as violative of Article 14 of the Constitution and that will not improve the position of the petitioner.