DARSHAN PAL Vs. DARSHNA

JUDGEMENT

(1.) THIS is a petition for revision by the husband attempting to get out of an order of maintenance passed under S. 125 of the Cri. P. C. The main ground of attack is that firstly he obtained a decree for restitution of conjugal rights against the wife and on her failure to comply with the same, he obtained a decree of divorce from a matrimonial Court. Asserting that the wife, against whom a decree for restitution of conjugal rights subsisted, cannot claim maintenance, he wishes this Court to ignore the decree for divorce and necessarily the explanation added to S. 125(1) of the Cri. P. C. Thereunder, as is plain, the wife includes a woman who has been divorced or has obtained a divorce from her husband and has not remarried. It is beyond challenge that a divorced wife can claim maintenance under S. 125 of the Cri. P. C. whatever be the reasons for passing of the decree of divorce. The right conferred on her is statutory. Her claim to maintenance can only be negatived if she has received some compensation of maintenance from her husband. No such thing is even pleaded in this case. The decree for restitution of conjugal rights outlived its utility and was cashed upon to break the marriage by dissolution. I had taken somewhat a similar view in Cr. M. No. 3289-M of 1984 (Raj Kumari v. Rajinder Lal Mehta) decided on 11th March, 1985 (reported in 1985 Marriage LJ 224 (Punj and Har)). Keeping in accord with that view, this petition needs to be dismissed. However, the learned counsel for the petitioner is emphatic that in the absence of a finding of neglect or refusal, the order of maintenance cannot be sustained, especially when the husband is willing to keep his wife. There is an obvious fallacy in the argument. A divorced wife is under no obligation to live under the roof of the husband. Equally, the husband cannot forestall the claim of maintenance by making a suggestion that he was willing to keep her. The nuptial tie has been dissolved once for all. It is the new status of the wife as a divorced wife which gives her the right of maintenance. No specific words of neglect or refusal need in such a case be pleaded or proved. These are matters of inferences drawn from the circumstances of the case. When a husband refuses to pay maintenance to his divorced wife unable to maintain herself, neglect and refusal is inherent in it. Thus, I have not the slightest hesitation in dismissing the revision petition so as to maintain the order of maintenance. Ordered accordingly. Petition dismissed.