GULAB JAGDUSA KAKWANE Vs. KAMAL GULAB KAKWANE

JUDGEMENT

(1.) This is a revision application referred by the learned Single Judge to the Division Bench. The only question of law involved in this petition is whether under section 25(1) of the Hindu Marriage Act, 1955 the wife against whom a decree for divorce has been passed on the ground of adultery can claim maintenance against her husband? The relevant facts leading to the present petition are as follows : The petitioner-husband and the respondent were married on the 24th December, 1972. According to the petitioner, the respondent deserted him on the 26th September, 1973 and he had no access to her since then. It is during this period of desertion, that she gave birth to a female child on the 16th September, 1974. She filed an application for maintenance both for herself and the child under section 125 of the Criminal Procedure Code. That application was dismissed and the revision application filed against the said order was also dismissed. The petitioner thereafter filed a matrimonial petition for a decree of divorce on the ground of adultery. That petition was decreed on the 14th February, 1978 and the appeal filed by the respondent against the said decree was dismissed on the 30th June, 1979. It is thereafter that on the 27th February, 1980, the present petition was filed by the respondent under section 25(1) of the Hindu Marriage Act, claiming maintenance for herself. The trial Court by its order dated the 2nd January, 1982 awarded maintenance at the rate of Rs. 60/- per month. The appeal filed by the petitioner against the said order was dismissed on the 7th August, 1982. Hence, the present revision application.

(2.) Shri Phadkar, the learned Counsel appearing for the petitioner, contended that the scheme of section 25 is clear enough to disentitle a woman to maintenance when a decree of divorce is passed against her on the ground of adultery. In this connection, he invited our attention to the language of sub-sections (1) and (3) of section 25. He submitted that sub-section (1) states that while deciding an application under the said section, the Court has to take into consideration the conduct of the parties and other circumstances of the case. The conduct of the parties and other circumstances of the case would include moral conduct of the claimant, and if at the time of passing the decree itself, the Court could not have passed an order of maintenance in favour of a claimant who was living in adultery or who had a child out of adulterous intercourse, then it is impermissible for the Court to make such an order after the decree has been passed. The provisions of sub-section (3), according to him, reinforce this interpretation of sub-section (1) inasmuch as they declare that if a wife in whose favour an order for maintenance under sub-section (1) is made, does not remain chaste, the order is liable to be varied, modified or rescinded. This further shows, according the Shri Phadkar that in no circumstance a wife against whom a decree of divorce has been passed on the ground of adultery can claim maintenance under sub-section (1) In support of this proposition he relied upon the very same decisions which were passed into service in the lower Court. The first is the decision of the Calcutta High Court reported in A.I.R. 1960 at page 575 (Sachindra Nath Biswas v. Smt. Banamala Biswas and another) In that case, a decree of judicial separation was passed against the wife on the ground that she was living in adultery with the co-respondent. While passing the decree, the District Judge had made an order for maintenance in favour of the wife under section 25(1). After referring to the facts of the case, the Calcutta High Court pointed out that there was unrebutted evidence to the effect that the wife was living in adultery with the co-respondent even at the time when the case was being heard, and hence, the learned District Judge should not have made any order for maintenance in favour of the wife. It is against the background of the said facts that the learned Judges observed as follows:

(3.) There is no authority of this Court on the point brought to our notice. We are, therefore, called upon to interprete the provisions of section 25(1) for the first time in this Court. The provisions of section 25 are as follows: