SUVANKAR SENGUPTA Vs. KAKALI SENGUPTA

JUDGEMENT

(1.) This revisional application is directed against an order dated 3.11.1998 passed by the learned Judicial Magistrate at Barrackpore, within the District of North 24 Parganas in connection with Maintenance Case No. M. 51 of 1997 under Section 125 of the Code of Criminal Procedure which was filed by the wife praying for maintenance for herself and her minor sons having under the custody of the mother, respondent No. 2.

(2.) The case of the applicant is that the marriage between him and the opposite party took place in 1990 as per the Hindu Rites, but after the lapse of two years, the marriage broke down and the parties filed a joint petition for decree of divorce on mutual consent under the provisions of Section 13B of the Hindu Marriage Act which was allowed by the learned Additional District Judge and a decree of divorce on mutual consent was passed thereby dissolving their marriage in matrimonial Suit No. 481 of 1992. But subsequently respondent i. e. , the divorced wife filed an application under Section 125 Cr. P. C. claiming maintenance from this revisional application before the Court of Sub-divisional Judicial Magistrate, Barrackpore and finally the case being No. 51/97 was transferred to the Court of Judicial Magistrate, 2nd Court, Barrackpore for hearing. There this petitioner appeared and challenged the legal maintainability of that maintenance-petition on the ground that there having been a decree of divorce on mutual consent and the parties living separately such a petition could not lie. But that petition was heard and dismissed by the learned Magistrate and a date for hearing on merit of the case has been fixed. Being aggrieved by this order, the petitioner has preferred the present revisional application challenging the same as illegal and invalid.

(3.) On a perusal of the impugned order I find that learned Magistrate rejected the contention of the husband-petitioner that the application for maintenance filed by the O. P. was not legally maintainable since she had been divorced on the strength of a decree passed by a Civil Court of divorce on mutual consent under Section 13B of the Hindu Marriage Act on the ground that in view of the Explanation (b) to sub-section (1) of Section 125 Cr. P. C. "wife" includes a divorcee wife if she has not remarried. I do not find any fault with this fording of the Court below. Even if the divorce is a result of mutual consent, there will be no change in this legal position, inasmuch as, the sole object of providing such kind of maintenance is to prevent destitution and vagrancy. So, if the other conditions laid down under Section 125 for getting this benefit are fulfilled, a wife divorced on mutual consent will be equally entitled to get an award of maintenance under this section. The expression occurring in sub-section (4) or (5) of Section 125, namely, "if they are living separately by mutual consent" should not be equated with the separate living in consequence of a decree of divorce on mutual consent being passed by a Civil Court. Divorce presupposes separate living. But this separate living is not to be treated as separate living on mutual consent. Otherwise, the inclusion of a divorced wife in the definition of "wife" would have been unnecessary. Separate living is a course of law and an essential corollary of a decree of divorce and that separate living cannot be treated as separate living on mutual consent. This is why the contention of the petitioner that the findings of the learned Magistrate are against the spirit behind the provisions of sub-sections(4) and (5) of Section 125 is unacceptable.