M ALAVI Vs. T V SAFIA

JUDGEMENT

(1.) Revision-petitioner (husband) was the respondent in Crl. R. P. No. 85 of 1989 on the file of Sessions Court, Thalassery. The respondent (wife) herein filed an application under S.3 of the Muslim Women (Protection of Rights) on Divorce Act (for short 'the Act') for maintenance during idat period and also for reasonable and fair provision for her future. The Chief Judicial Magistrate, before whom the application was filed, dismissed the application holding that the same is not maintainable. The learned Magistrate was of the view that the petitioner in the application was leading an adulterous life and so she is not entitled to get any relief under S. 3 of the Act. Aggrieved by that order respondent-wife filed revision petition before the Sessions Court, Thalassery. The Sessions Judge reversed the finding and held that the application for maintenance is maintainable and for determination of the quantum the matter was remanded to the trial Court. Aggrieved by that order the husband-petitioner has filed this revision.

(2.) The main thrust of argument of the revision petitioner's counsel is that the revision-petitioner's divorced wife has been leading an immoral life and so the revision petitioner is not liable to pay any amount under S.3 of the Act. Counsel for the revision-petitioner placed reliance on Section 125(4) of the Code of Criminal Procedure and contended that the general principles that govern the provisions for maintenance under S. 125, Cr. P.C. are applicable to a proceedings under S. 3 of the Act. The respondent's counsel, on the other hand, contended that the allegation that the respondent has been leading an immoral life is denied and even if such an allegation is true that will not disentitle her from claiming any relief under S. 3 of the Act.

(3.) Section 125, Cr. P.C. is a salutary provision intended to grant maintenance for wives, children and parents. For the purpose of the provisions of this Chapter, it is explained that 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. So under S.125, Cr. P.C. a divorced wife also can maintain an application. Under S. 125(4) it is stated that "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". Learned counsel for the revision-petitioner submits that S. 125(4) says that the wife living in adultery is not entitled to get maintenance and this is applicable to woman who has been divorced by her husband. I am unable to accept this contention. Section 125(4) itself has no application to a woman who has already been divorced by her husband for the simple reason that a divorced woman can never be said to be committing adultery even if she has got promiscuous sexual relationship with other persons. In Oxford English Dictionary the word 'adultery' is defined as "violation of the marriage bed. Voluntary sexual intercourse of a married person with one of the opposite sex, whether unmarried or married to another". Violation of marriage bed is not only the ordinary meaning of the word 'adultery' but it is also the legal meaning of that word. The cardinal points for consideration is whether woman has "defiled her marriage" bed and if she is no longer a wife there cannot be any defilement or disowning of her marriage bed as she is a single woman then and has no marriage bed and married home. So, the term 'wife' used under S. 125(4), Cr. P.C. would only mean a woman whose marriage relationship is in existence. A divorced woman will not come within the amplitude of S. 125(4). So, the analogy drawn by the revision petitioner's counsel that the general principles in S. 125(4) are applicable to the proceedings under S. 3 of the Act cannot be accepted.