VALSALA Vs. SURENDRAN

JUDGEMENT

(1.) The short question that falls for decision is whether the fact that the revision petitioner was living separately from the first respondent in terms of the stipulations contained in the deed evidencing dissolution of their marriage, would constitute a bar under S.125(4) of the Code of Criminal Procedure to her claim for maintenance under S.125(1) of the Code. Sub-s.(4) reads as follows:-

(2.) The further question that arises for consideration is whether, if the divorced woman and her erstwhile husband are living separately by mutual consent, that would constitute a bar under sub-s.(4) of S.125 of the Code to the claim under sub-s.(1) for maintenance. We have to examine whether the order of the Magistrate that in as much as in consequence of the dissolution of marriage evidenced by Ext. D-1 deed the petitioner and her erstwhile husband are staying separately by mutual consent the bar under sub-s.(4) comes into play is correct. The learned Magistrate appears to hold the view that the first two sets of facts, relating to. living in adultery, and refusal to live with her husband (which would mean ex husband) would not constitute a bar under sub-s.(4) in the case of divorced woman claiming maintenance under sub-s.(1) in view of the practical and legal difficulties involved in taking a contrary view; he, however, thinks that not only in the case of a woman whose marital relationship subsists, but also in the case of a divorced woman the bar would operate under sub-s.(4) if they are living separately by mutual consent. In other words, according to the learned Magistrate, a woman who obtained divorce through mutual consent, which in turn entitles her to live separately from her erstwhile husband, will not fall within the term "wife" even when the expanded meaning to that term as given by Explanation (b) to sub-s.(1) of S.125 of the Code is applied to the case. The reason given for this interpretation is that it is only to cases where a "woman who has been divorced by, or has obtained a divorce from, her husband that Explanation (b) to sub-s.(1) of S.125 would apply, and the Explanation would exclude cases in which the woman obtained divorce by mutual consent which in turn enables her to live separately from her erstwhile husband. In my view 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. 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. Clause (c) of sub-s.(3) of S.127 which provides, that when any order has been made under S.125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate may, if he is satisfied that "the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order" allowing maintenance to her. This is an indication that a woman who has obtained a divorce would continue to be entitled to receive maintenance until she renders herself disentitled to it by a conscious act of waiver in that behalf. If the position of the woman who has obtained a divorce is this, that of the woman who obtained it by mutual consent cannot be anything worse. Sub-s.(4) of S.125 makes no reference to a divorced woman. When the Parliament used the expression "living separately by mutual consent" in sub-s.(4) of S.125, as in the case of living in adultery, it has reference only to case of such "living separately by mutual consent" of a man and a woman between whom marital relationship subsisted during the material time. I am, therefore, of the opinion that the learned Magistrate was not correct in taking the view that because there was as per Ext. D-1 deed a dissolution of marriage between the petitioner and the first respondent, the first respondent is absolved from the liability to pay maintenance to the petitioner by reason of the provisions contained in S.125(4) of the Code.

(3.) The counsel of the first respondent submitted that some other contentions were also raised by the first respondent, and the court below did not go into those questions as it thought that there was a bar under S.125(4) of the Code to the maintainability of the claim, and that a decision on that point alone would be sufficient to dispose of the matter. It does not appear that the court below has considered all the questions that were raised before that court. That being the position, I think, while holding that the learned Magistrate's view regarding the applicability of S.125(4) is wrong, the matter has to be remanded to that court for disposal afresh according to law after considering the other questions that are stated to have been raised, giving reasonable opportunity to both sides to state and prove their respective contentions.