BAI MANI Vs. KHIMA PARBAT SUVAGIA

JUDGEMENT

(1.) THE second contention raised by Shri A. K. Shah the learned advocate for the first respondent is based on the language of sub-sec. (4) of sec. 125 which reads thus: 4 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 THE sub-section contemplates three types of cases in which a wifes claim to receive allowance can be defeated. THEse are (i) where a wife is living in adultery: (ii) where the wife without sufficient reason refuses to live with her husband and (iii) where the spouses are living separately by mutual consent. Mr. A. K. Shah contended that according to cl. (b) of the Explanation wife includes a divorced woman and since in the instant case the document ex. 4 clearly says that the wife and husband had by mutual consent decided to live separately no allowance could be ordered in favour of the petitioner. THEre is no merit in this contention In the first place it must be remembered that the provision of sub-sec. (4) of sec. 125 reproduces in identical terms the provision of sub-sec. (4) of sec. 488 of the old Code which did not entitle a divorcee wife to claim allowance or maintenance from her ex-husband. THE three cases are cases where the marriage is still subsisting and the marital ties have not been snapped. THEre cannot be cases of wife living in audltery or wife refusing to live with her husband without sufficient reason if the marriage does not subsist. Mr. A. K. Shah could not stretch his argument beyond saving that the present case would fall in the last category of cases where the parties decide to live separately by mutual consent. He however over-looks the fact that in the case of a couple whose marital ties have been snapped there is no question of living separately by mutual consent for the obvious reason that they could not be expected by the Legislature to live together after the marriage was broken. THE question of living separately by mutual consent can never arise in a case where the relationship of husband and wife has come to an end. It can only apply to those cases where the husband and wife are expected to live together and yet by mutual consent they live separately. THE context therefore makes it clear that the expres- sion wife in sub-sec (4) is used in the narrow sense and not in the wide sense of cl. (b) to the Explanation of sec 125 of the Code. THEre- fore the contention of Mr. A. K. Shah that the petitioner would not be entitled to maintenance by virtue of sub-sec. (4) of sec. 125 of the Code is clearly without substance and must be rejected.