BISWAPRIYA BHUIYA Vs. JHUMI BANIK

JUDGEMENT

(1.) The petitioner Sri Biswapriya Bhuiya was married to the respondent Smt. Jhumi Banik on 11th May, 2004 by performing Hindu religious rites and rituals. The marital relation, however, suffered serious set-backs allegedly for mental and physical torture on the wife by the husband. The relation turned so bitter that at one stage she instituted a suit for divorce which was registered as T.S. (Divorce) Case No. 2005 in the Family Court, Agartala, West Tripura. The suit was finally disposed of by a consent decree for divorce on 23.9.2005. The compromise petition dated 19.8.2005 for mutual decree came to be the part of the decree. It is to be noticed that the compromise petition for mutual divorce was signed by the parties in presence of witnesses on 19.8.2005, wherein it was stipulated that the compromise for mutual decree between the parties would be unconditional. But, after a week, the respondent wife herein submitted a prayer that she had to agree to a mutual divorce without any condition under tremendous pressure. But now, after the matter was carefully reconsidered, she decided that she must claim monthly maintenance of Rs. 3000/- (rupees three thousands) per month and return of all the gifts including ornaments given to her at the time of marriage, kept by her husband in his custody. On 25.8.2005 the husband raised a written objection to the above application of the respondent wife contending inter alia that the compromise was arrived at between the parties out of their free will and, therefore, the question of payment of maintenance to her did not arise. In the order dated 23.9.2005 disposing of the suit on compromise it has been observed by the Court that the respondent wife herein did not press her petition claiming maintenance. But after the decree of divorce was passed, the respondent wife instituted Misc. Case No. 51 of 2006 under Section 125 of the Criminal Procedure Code claiming maintenance from her husband on the ground that she had no means of livelihood. The said proceeding for maintenance came to be opposed by the husband on several grounds, the principal contention being that the decree of divorce having been passed unconditionally on compromise, she was legally debarred from raising such a claim later in a proceeding under Section 125, Cr.P.C. The said proceeding came to be disposed of by the Family Court rejecting the contention of the former husband and declaring that the respondent wife herein is entitled to Rs. 1500/- (rupees one thousand five hundred) per month as maintenance with effect from 1.5.2006. The said judgment dated 10.5.2006 passed in Misc. Case No. 51 of 2006 by the Family Court, Agartala, West Tripura has been put under challenge in the present revision petition.

(2.) It is not in dispute that at the time of settlement for mutual decree of divorce nothing was paid to the wife towards maintenance or no stipulation was made in the compromise petition for one time or periodical maintenance. Though it has been contended by the petitioner husband herein that the respondent wife is an educated woman, nothing has been said regarding her source of income. Mr. Talapatra, learned Sr. Counsel for the petitioner advanced a submission that in view of the unconditional compromise and the specific mention in the decree of divorce that she did not press her claim of maintenance, which she raised in her prayer dated 20.8.2005, her claim for maintenance at a later stage when the marriage did no longer subsist is not legally sustainable. Mr. P. Roy Barman, learned Counsel for the respondent wife on the other hand strongly argued that the law has come to be settled firmly that even after unconditional compromise for a decree of divorce between the parties, it is open to the wife to claim maintenance under Section 125 of the Criminal Picture Code at any later stage if two conditions are fulfilled, namely (i) she has not re-married and (ii) she has no means to support herself.

(3.) At the very outset it may be kept in view that the conditions disentitling a wife to claim maintenance imposed by Section 125(4) of the Criminal Procedure Code has no application in case of a divorcee wife. In Rohtash Singh v. Ramendri (Smt.) and Ors., 2000 3 SCC 180, the Apex Court observed "the provision of Section 125(4) of the Criminal Procedure Code would be applicable where the marriage between the parties subsists and not where it has come to an end". That a wife after divorce is also entitled to claim maintenance from her former husband has also been firmly settled in a line of decisions of the Apex Court in view of the Explanation (b) of Sub-Section (1) of Section 125. According to that explanation 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. It is obvious that the sweep of Section 125 has been widened by such definition of "wife" in order to advance social justice. In Capt. Ramesh Chander Kaushal v. Veena Kaushal, 1978 4 SCC 70, the Supreme Court observed in para 9 which reads as follows :-