MOHAMMED Vs. AYISHA

JUDGEMENT

(1.) Respondent herein as divorced wife of the petitioner filed M. C. 74 of 1979 before the Judicial Magistrate of the First Class, Tirur claiming maintenance under S.125 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The application was opposed by the present petitioner but was allowed by the learned Magistrate who directed him to pay maintenance at the rate of Rs. 30/- per month from the date of the petition. This order was challenged by both sides in revision before the Sessions Court, petitioner challenging the liability and the respondent seeking a higher amount. The Sessions Court dismissed both the revisions. The petition is filed seeking interference under S.482 of the Code.

(2.) Admittedly, petitioner and the respondent were married about three decades ago. Two daughters were born in the marriage and both of them are married. The marriage subsisted for about 10 to 15 years and thereafter the petitioner divorced his wife. He has married again and is living with his second wife and five children. Therefore, respondent put forward the claim as divorced wife in the light of Explanation (b) to S.125(1) of the Code. Petitioner herein filed a written statement contending that after he divorced the respondent, respondent was married by one Abubacker and the latter also divorced her on account of her immoral ways. The alleged second marriage was denied by the present respondent examined as pw. 1 and was attempted to be proved by the present petitioner examined as CPW. 1 and another witness CPW. 2. CPW. 1 evidently had no personal knowledge about the marriage. CPW. 2 claimed to have attended the marriage. But both the courts below declined to accept his evidence and accepted the denial by Pw. 1 and held that the respondent still remains the divorced wife of the petitioner and she had not remarried. I do not think in proceedings under S.482 of the Code I should attempt reappreciation of the evidence and take any different view. Prima facie, it appears that respondent is a woman who has been divorced by her husband, the petitioner, and therefore she falls within the extended definition of the expression "wife" as given in Explanation (b) to S.125(1) of the Code for the purpose of putting forward the claim for maintenance.

(3.) Learned counsel for the petitioner strenuously contended that the extended definition of the expression ''wife" which includes a divorced wife would apply only to a wife who has been divorced after the coming into force of the Code and cannot apply to a wife who was divorced prior to the coming into force of the Code. According to him, to hold that the definition takes in a wife who was divorced prior to the coming into force of the Code would amount to giving retrospective effect to the provision and that is not warranted.