SHESHRAO NARAYAN THENGE Vs. SHANTABAI AND ANOTHER

JUDGEMENT

(1.) In this revision, the husband has challenged the order of the Sessions Judge, Yavatmal granting maintenance to the divorced wife. The trial Court had dismissed the application of the divorced wife for granting maintenance.

(2.) Shri Bhangde, the learned Counsel for the applicant contended that under Sub-section (4) of Sec. 125 Cr. P.C., the wife is not entitled to receive an allowance of maintenance if she resides separately by mutual consent. In the instant case, it is an admitted position that both were residing separately since 20th March, 1984, when the divorce deed Exhibit 13 was executed. Shri Bhangde further contended that "wife" has been defined in explanation added to Sub-section (1) of Sec. 125 Cr. P.C. as under :

(3.) The definition of "wife" occurring in Explanation (b) added to Sub-section (1) of Sec. 125 Cr. P.C. has been used in a wider connotation for the purposes of her entitlement for receiving the maintenance. It is not used in relation to a "wife" whose marriage is subsisting. In Sub-section (4), the word "wife" is also used in relation to a woman whose marriage is subsisting and if during the subsistence of her marriage, she lives in adultery or separately by mutual consent, then in that context only, she is not entitled to maintenance. The provisions of Sub-section (4) of Sec. 125 are in the nature of prohibition to a wife whose marriage is subsisting. To give the same meaning to the word "wife" occurring in Explanation (b) to Sec. 125(1) would mean to destroy the meaning of "wife" given, in Sub-section (4) which disentitles a married wife for the purposes of maintenance, if she is living separately by mutual consent. The meaning of Sub-section (4) has to be derived by reading the entire sub-section. It makes it dear that the wife shall not be entitled to receive an allowance from her husband if she lives in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent when their marriage is subsisting. In the instant case the wife was living separately not by mutual consent but due to the act of divorce. Under these circumstances, it is difficult to accept the interpretation of this clause as stated by Shri Bhangde. In my view, the learned Sessions Judge was right in granting maintenance to the divorced wife.