MONI Vs. SUJATHA

JUDGEMENT

(1.) The short question that comes up for consideration in this criminal revision petition is whether a divorced wife is disentitled from claiming maintenance under S.125 of the Code of Criminal Procedure for the reason that during subsistence of the marriage she was cruel to the husband and deserted him thereby necessitating divorce.

(2.) In M. C. 6/81 on the file of the Chief Judicial Magistrate, Trichur the first respondent claimed maintenance for herself and her minor son under S.125 of the Code from the petitioner who is husband and father. The claim of the first respondent was in her capacity as divorced wife. The Chief Judicial Magistrate found that the 1st respondent was cruel to the petitioner and she deserted him. These were accepted as the reasons for divorce also. But it was rightly held that cruelty and desertion by the wife during subsistence of the marriage and divorce being necessitated and effected for those reasons will not disentitle her claim for maintenance as a divorced wife. I think the magistrate has rightly done so.

(3.) According to the extended definition of wife contained in S.125 of the new Code of Criminal Procedure, wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The reason for the divorce or the manner in which divorce was effected was not intended to be included as grounds in considering the claim of a divorced wife to get maintenance. During the subsistence of marriage the wife may have eversomany marital obligations to the husband. Those obligations are having corresponding rights also. The wife may be bound to keep company with the husband except when she is justified in residing away from him. She may be bound to submit to other marital obligations including conjugal rights also. There may be eversomany disqualifications for the wife in claiming maintenance at a time when the marriage is subsisting. But all those disqualifications will cease to exist as soon as divorce is effected. The reason is that after divorce she ceases to be the wife except for the limited purpose of claiming maintenance under S.125 of the Code of Criminal Procedure. She will be entitled to get maintenance if she is not having any of the disqualifications provided in the said provisions. So far as I understand the only two disqualifications are re-marriage and living in adultery. The questions whether during subsistence of the marriage she deserted the husband or was cruel towards him or whether her cruelty and desertion were the grounds for dissolution of marriage are matters absolutely foreign to the scope of inquiry when her claim for maintenance in her new capacity as divorced wife is being considered. In fact claim of a lady for maintenance during the subsistence of the marriage and her claim for maintenance after divorce are independent of each other. These are independent claims based on independent causes of action. Therefore I do not agree with the counsel for the revision petitioner that since the first respondent was cruel or guilty of desertion during the subsistence of marriage she is disentitled for that reason from getting maintenance which she was otherwise entitled to under the provisions. I fully endorse the views of the Magistrate that the first respondent is entitled to get maintenance