GIRDAHRI LAL Vs. SANTOSH KUMARI

JUDGEMENT

(1.) IT is the husband who invokes the jurisdiction of this Court under section 482 of the Criminal Procedure Code claiming that his divorced wife, the respondent, has no right to claim maintenance from him as she was the guilty party which led to the dissolution of marriage. Support is sought from section 25 of the Hindu Marriage Act where -under while granting permanent alimony the conduct of the parties and other circumstances of the case are required to be taken into consideration. The husband maintained that the conduct of the wife led to his filing the divorced petition successfully. And on this ground he maintains that the wife has no claim.

(2.) THE marriage between the parties took place on 28th April, 1974. Immediately thereafter, their relations became strained. There was no child to the marriage. At her instance, a criminal case was instituted against the relatives of her husband. While that case was pending, she instituted on January 12, 1978, the present claim for maintenance under section 125 of the Code of Criminal Procedure. The husband, on the other hand, filed a petition for divorce on the ground of cruelty. The first matrimonial Court dismissed his claim but this Court on October 22, 1981 in F.A.O, No. 127 -M of 1981, Girdhari Lal v. Smt. Santosh Kumari granted divorce to the husband. The finding recorded by this Court was that the wife had been proved to be guilty of cruelty and the same had not been condoned by the husband. The claim of maintenance was allowed by the trial Magistrate fixing it at Rs. 100/ - per mensem from the date of the application. The husband's revision to the High Court was allowed and the case was remanded to the Chief Judicial Magistrate for fresh decision after taking into consideration the judgment of divorce passed by this Court. The said judgment was considered but in the light of Bai Tahira v. Ali Hussain Fissali Chothia and another, 1979 P.L.R. 218, the learned Magistrate granted maintenance at the same rate. And on the same premises the Court of Session maintained it giving cause to the petitioner to approach this Court in the present proceedings.

(3.) SECTION 125 of the Code of Criminal Procedure the provision benigh, comes to the rescue of the destitute wives, children and parents. If any person having sufficient means neglects or refused to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. The explanation added there to explain the word "wife" to include a woman who has been divorced by, or has obtained a divorce from, her husband, irrespective of the fact as to who obtained the divorce and on what ground, is maintainable. The language is not curbed any manner by the requirements, as mentioned in Section 25 of the Hindu Marriage Act for those have in case of divorced wife some permanency in view. But here is a summary remedy provided to the divorced wife to seek maintenance if she is unable to maintain herself. I see no reason why the conduct of the wife, a conduct which suggestedly gave the husband relief of divorce, should stand in the way of the wife to claim maintenance under section 125 of the Code of Criminal Procedure. The scope of section 125, Criminal Procedure Code, as it appears to me is somewhat different, as also its objectives. Thus I am of the considered view that the conduct of the wife which led to the dissolution of the marriage, has not to be seen while considering her claim for maintenance. The husband's stiffness to oppose such a claim on such ground is by itself refusal as also neglect to maintain the divorced wife, (sic) the courts below justified in granting her maintenance allowance of Rs. 100/ - mensem which by no means is excessive from any standard. Rather, nothing has been argued before me on the quantum of maintenance.