ARJUNLAL THAWAIT Vs. SHASHIKALA

JUDGEMENT

(1.) THIS revision filed under Section 397/401, Cr. P. C. is by the husband and is directed against the order of maintenance dated 14-8-1986 passed by Shri R. K. Shrivastava, IInd Additional Sessions Judge, Raigarh in Cr. Revision No. 72/1985.

(2.) THE parties are admittedly husband and wife married in accordance with Hindu law. They were married at Sarangarh about eight years before 30-7-1979, when the N. A. filed an application before the Judicial Magistrate, Class I at Sarangarh under Section 125 Cr. P. C. (hereinafter referred to as the Code) alleging that she was living separately from the applicant since last several years. She further, alleged that the applicant was treating her with cruelty and not giving food, with the result that she was forced to come with her father, with whom she was living at the present. She claimed a sum of Rs. 300/- per month as maintenance. She also submitted that the applicant had married again and has two children from his second wife. This application was opposed by the applicant who submitted that there has been a divorce by mutual consent and that the non-applicant was living separately 'by mutual con sent' and was therefore not entitled to maintenance in view of Section 125 (4) of the Code. The applicant also produced an agreement (Ex. NA-1) dated 10-10-1977 to establish that the N. A. has voluntarily taken divorce and had given up her claim for maintenance. The learned Judicial Magistrate in his judgment dated 19-8-1985 accepted the plea of the applicant and held that in view of Section 125 (4) of the Code the N. A. was not entitled to any amount. The learned ASJ disagreed with the learned Judicial Magistrate and held that inspite of divorce, the N. A. is entitled to maintenance. He therefore directed payment of Rs. 100/- p. m. from the date of the application. It is this order which is impugned in this revision.

(3.) THE only question for consideration of this Court is whether Section 125 (4) of the Code is attracted in the present case ? It is clear that even a divorced wife is entitled to claim maintenance under Sub-section 1 of Section 125 of the Code and hence divorce, by itself, would not be enough to defeat this right. Bai Tahira v. Ali Hussain, AIR 1979 SC 362 and Mohd. Ahmed v. Shah Bano Begam, AIR 1985 SC 945, are the authorities to support this proposition, which is otherwise clear from the bare text of the section. But, a claim for maintenance by a wife, which includes divorced wife, will not be granted if (1) she is living in adultery, or (2) she refuses to live with her husband without any sufficient reason, or (3) if they are living separately by mutual consent. Bai Tahira (supra) was a case of Muslim divorce and establishes that no proof is required to hold that a divorced wife was not living separately by mutual consent. According to Supreme Court, "divorce painfully implies that the husband orders her out of the conjugal home" and "if law has nexus with life this argument is still-born. " This logic is valid in all those cases where the husband divorced the wife. It must therefore be held that in all those cases where the husband has divorced his wife, it will be assumed that the wife is not living separately by mutual consent. On the same logic the divorced wife can not be held to be living separately 'without sufficient reason'. Clearly therefore condition Nos. (2) and (3) are not attracted in cases where the husband has divorced the wife. Can a different conclusion be reached where the wife and not the husband, has obtained divorce ? No personal law has, so far, given such a right to the wife and hence such cases, if at all, can arise only under the statutory laws. In all statutes, whether it be the Hindu Marriage Act, 1956 or any other law, the right given to the wife to obtain a decree for divorce is limited and is available only when the husband treats her with cruelty etc. Unless the husband is held guilty of delinquency, no court would grant divorce to the wife. In all such cases, the right of the wife to receive maintenance under Section 125 of the Code would remain intact and would not be defeated under Sub-section (4) thereof. Indeed Sub-section (4) of Section 125 of the Code would not be attracted in cases where the wife obtains a decree of divorce on proof of husband's delinquency. In this view of the matter, it will have to be held that a divorced wife is not living separately with the husband 'by mutual consent' and would therefore be entitled to receive maintenance under this provision.