RAMESH CHANDRA Vs. BEENA SAXENA

JUDGEMENT

(1.) Smt, Beena Saxena is the daughter of Sri Brij Nandan Lal Advocate. Sri Ramesh Chandra is a resident of Meerut On 12th Feb., 1977 they were married in Fatehgarh. Soon thereafter their relations were strained. Smt. Beena Saxena filed a petition for divorce on the ground of cruelty, which was not contested by Sri Ramesh Chandra. It was allowed on 3rd April, 1978. Thereafter on 12th Apr., 1979 she moved an application for maintenance under Section 125 Cr. P.C. It was mentioned therein, inter alia, that Smt. Saxena was unable to maintain herself. The opposite party was a wealthy person, but she confined her claim to Rs. 500/- per month. This application was contested by Sri Ramesh Chandra. Both parties led evidence in support of their respective cases. It appears that on 18th Nov., 1980 Smt. Beena Saxena entered into a remarriage. An objection was taken before the Magistrate that in view of the aforesaid remarriage, Smt. Beena Saxena was not entitled to get any maintenance allowance. The Magistrate framed three issues. The first issue itself was concerned with the question, whether Smt. Beena Saxena was entitled to the maintenance allowance for the period prior to her second marriage? The other two issues were concerned with the question whether Smt. Saxena was unable to maintain herself? and, if so, to what amount of maintenance she was entitled? The trial court arrived at the conclusion that because Smt. Saxena had entered into a remarriage she has ceased to be the wife of Sri Ramesh Chandra and as such she was not entitled for any maintenance allowance for any period whatsoever. On the second two points the Magistrate did not give any decision for he thought that it was useless to do so since the application of Smt. Saxena was not maintainable. Aggrieved by the order a revision was filed before the Additional Sessions Judge, Farrukhabad, which has been allowed on 28-8-1981. The case has been remanded to the trial court to give its findings on all the points that arises in the case on the basis of the evidence already recorded. This has been challenged in revision before this Court by Sri Ramesh Chandra.

(2.) I have heard the learned Counsel for the parties at a considerable length. Each of them supported their submissions by making reference to the provisions contained under Sections 125 and 127 Cr. P.C. In the light of these provisions I shall now examine the contentions of the parties. Under Section 125(1) Cr. P.C. if a person having sufficient means, neglects or refuses to maintain his wife, unable to maintain herself, then it would be open to such an aggrieved wife to apply before the Magistrate of the 1st Class for awarding of monthly maintenance not exceeding Rs. 500/- payable by the husband. Of course, before she can be granted this relief she has to prove to the satisfaction of the Magistrate that her husband has neglected or refused to maintain her. Apart from that, the wife has also to prove that she is unable to maintain herself and that her husband has sufficient means to maintain her. But there is no legal restriction or bar placed on the right of the aggrieved "wife" to apply before the Magistrate for the maintenance under Section 125 Cr. P.C. The maintainability of her application has to be judged on the date when such application is filed. The stage of proving the allegations of neglect and refusal is a subsequent stage upon the proof of which or otherwise her claim would either be allowed or disallowed by the Court. It is significant to note, in this connection that under the Explanation (b) of Section 125(1) Cr. P.C. "wife" includes a woman, who has been divorced or has obtained a divorce from her husband, and has not remarried. On the basis of this explanation it can be argued that a wife, who has remarried, ceases to be the "wife". But the question is on what date does this relationship of husband and wife terminate for purposes of Section 125 Cr. P.C. If the divorced wife flies an application for maintenance under Section 125 Cr. P.C. and till that date she has not remarried, then in those circumstances she would continue to be the wife and her application claiming maintenance from her husband would be legally maintainable. But if the divorced wife remarried and subsequent to her remarriage she files an application under Section 125(1) Cr. P.C. in those circumstances she having ceased to be the wife on the date of application, in view of the explanation her application would not be maintainable. Thus the status of wife has got to be seen on the date when the application under Section 125 Cr. P.C. is filed. If she retains that status the application is maintainable and if she loses that status, the application is not maintainable as on the date it is filed.

(3.) Under Section 125(2) Cr. P.C. maintenance allowance shall be payable from the date of order or if so ordered from the date of application for maintenance. This Sub-section clearly directs that on proof of the allegations made by the wife such allowance shall accrue from the date of the order. In other words it must be payable from that date. It is not open to the Magistrate to fix a future date for payment of allowance. He cannot, for instance, say that the allowance would be payable from a date three months subsequent to the passing of the order. Such a direction would be illegal. The payment must be made from the date of the order.