SADASIVAN PILLAI Vs. VIJAYALAKSHMI

JUDGEMENT

(1.) Petitioner seeks to have the proceedings pending against him under S.125 of the Code of Criminal Procedure quashed. Vijayalakshmi, the respondent herein, has initiated those proceedings on the ground that her marriage with the petitioner was solemnised on 13-9-1984 and that after a few weeks of married life, the petitioner deserted her and neglected to maintain her. The petitioner's stand was that the marriage between him and the respondent is null and void as the respondent has been suffering from paranoid schizophrenia. The petitioner filed an application before the Sub Court, Mavelikkara under S.12(1)(b) of the Hindu Marriage Act, 1955 for a declaration that the marriage is null and void. The respondent filed the application for an order for monthly allowance of maintenance under S.125 of the Code of Criminal Procedure before the Judicial Magistrate of the First Class, Kayamkulam as M.C. 40/85. However, the parties later filed a joint petition in the Sub Court, Mavelikkara under S.13B of the Hindu Marriage Act for a decree of dissolution of their marriage. It is said that the said application was disposed of by granting a decree of divorce as prayed for. The petitioner's case is that in the joint application filed under S.13B of the Hindu Marriage Act, the parties have stated thus: "we mutually agree and consent that neither of us have any claim or right on each other's person or property". According to the petitioner, the said clause was incorporated in the joint application on the specific understanding that the respondent would withdraw her application for the grant of maintenance allowance. He now complains that the respondent, in utter disregard of the above understanding or agreement, is now pursuing the matter. Thereupon, he filed an additional counter affidavit in M.C. 40/85 pending before the Judicial Magistrate of the First Class, Kayamkulam in which he raised the contention that the proceedings are liable to be dropped in view of the changed circumstances. As the learned Magistrate declined to accede to his request, he filed the present petition under S.482 of the Code of Criminal Procedure.

(2.) Learned counsel for the petitioner raised three points at the time of his argument. The first is that since the respondent has ceased to be a wife as defined in Chap.9 of the Code of Criminal Procedure, her application for maintenance allowance cannot stand any more. The second contention is that since they are living separately by mutual consent as envisaged in S.125(4) of the Code, the respondent is not entitled to receive any allowance from him. The third contention is that in the light of the specific agreement between the parties, the terms of which have been incorporated in the joint application under S.13B of the Hindu Marriage Act to the effect that "we mutually agree and consent that neither of us have any claim or right on each other's person or property", the respondent must be deemed to have relinquished her right, if at all any, for separate maintenance.

(3.) In support of the first contention the learned counsel has referred to the inclusive definition of the word 'wife' in the explanation to S.125(1) of the Code. It reads thus: " "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and not remarried." The learned counsel argued that the respondent has not been divorced by him, nor has she obtained a divorce from him, since the decree of divorce was the result of the joint application in which both of them expressed their desire to have their marriage dissolved. There is no substance in this argument. Even if it is conceded for argument's sake that the respondent has not been divorced by the petitioner, by no stretch of imagination can it be said that the respondent has not obtained a divorce from her husband. To obtain a divorce from the other party to a marriage, procedures are prescribed by different statutes applicable to persons belonging to different communities. One such procedure, applicable to persons governed by the Hindu Marriage Act, 1955, is to present a petition to the District Court by both the parties to a marriage as envisaged in S.13B of the said Act. Bhaskaran, J. (as His Lordship then was) has considered a similar argument in the decision reported in Valsala v. Surendran ( 1979 KLT 160 ). His Lordship observed that: "A divorce by agreement also implies divorce obtained from or by the spouse to satisfy the requirement of explanation (b) to sub-s. (1) of S.125.........The Parliament's intention was to extend the benefit of the Explanation to divorced woman without making any distinction between the method or forum through which the divorce came into existence. Any narrow construction placed on the scope of the Explanation would defeat the purpose of the provision to a great extent. A divorced woman is a divorced woman whether it is secured through court or by registered deed as per agreement." I respectfully agree with the aforesaid reasoning. A Division Bench of this Court in Kongini Balan v. M. Visalakshy ( 1985 KLT 967 ) has considered and repelled a similar contention. It is observed in the said decision that "it is difficult to comprehend that a wife who obtains divorce by mutual agreement is left out from the definition of "wife": a wife who obtains divorce by mutual agreement does not fall under a different category: by mutual agreement or by intervention of the court a wife can obtain divorce from her husband."