Wife is not entitled to maintenance who has deserted her husband – SC 1999

CASE NO.:
Special Leave Petition (crl.) 2763 of 1999

PETITIONER:
ROHTASH SINGH

RESPONDENT:
SMT. RAMENDRI AND ORS.

DATE OF JUDGMENT: 02/03/2000

BENCH:
S. SAGHlR AHMAD & D.P. WADHWA

JUDGMENT:
JUDGMENT

2000 (2) SCR 58

The Judgment of the Court was delivered by

S. SAGHER AHMAD, J. This Special Leave Petition was dismissed by us on
10.9.1999. We, hereinbelow, give our reasons for dimissing the Special
Leave Petition.

The petitioner who is a member of the Indian Army was married with the
respondent on 10th of May, 1990. Since the petitioner was posted away from
his home, he left the respondent with his parents living jointly with his
elder brother and his family at the family house in Village Kota, Police
Station Galaoti, Tehsil and District Meerut. This, according to the
petitioner, was not liked by the respondent who insisted that the
petitioner should take leave from Army and stay with her at her parent’s
house. It is said that in 1991, the respondent left the petitioner’s family
house and went away to her father’s house. She refused to come back to the
family house of the petitioner in spite of petitioner’s father and elder
brother having gone to the respondent to persuade her to come back. On her
refusal to come back, a notice was sent to the respondent on 5th of August,
1991 for restitution of conjugal rights but the respondent still did not
come back to the petitioner’s family house in District Meerut and,
therefore, in 1993, the petitioner filed a petition under Section 13 of the
Hindu Marriage Act for dissolution of the marriage on the ground of
desertion. The respondent in her defence raised various pleas including
mal-treatment and cruelty as also a demand by the petitioner for a sum of
Rs. 21,000 and a scooter. It was pleaded by her that she was always
prepared to come back to the petitioner but she was ill-treated by the
petitioner’s parents who used to lock her up in a room as the demand for a
cash amount of Rs. 21,000 and a scooter was not met by the respondent. The
Family Court, Meerut, decreed the suit of the petitioner on 15th of July,
1995 and passed the decree of divorce on the ground of desertion by the
respond-ent.

During the pendency of the suit for divorce, the respondent had filed an
application for maintenance under Section 125 of the Code of Criminal
Procedure on 28th of May, 1993 which was allowed by the Family Court,
Meerut on 13th of March, 1997 in spite of the fact that the judgment by
which a decree for divorce was passed in favour of the petitioner on the
ground of respondent’s desertion was brought to the notice of the Family
Court. The Judgment passed by the Family Court, Meerut was challenged by
the peti-tioner in a Revision tiled in the High Court but the Revision was
dismissed on 23rd of March, 1999. It is against this judgment that the
present petitioner has been filed.

The principal contention raised by the learned counsel for the petitioner
is that a decree for divorce having been passed under Section 13 of the
Hindu Marriage Act on the ground of desertion by the respondent, an order
for maintenance could not have been passed in favour of the respondent on
account of Sub-section (4) of Section 125 Cr. P.C.

Sub-section (4) of Section 125 Cr. P.C. provides as under :-

“(4) No wife shall be entitled to receive an allowance from her husband
under this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if they are
living separately by mutual consent.”

Under this provision, a wife is not entitled to any Maintenance Allowance
from her husband if she is living in adultery or if she has refused to live
with her husband without any sufficient reason or if they are living
separately by mutual consent. Thus, all the circumstances contemplated by
Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matri-
monial relations. The provision would be applicable where the marriage
between the parties subsists and not where it has come to an end. Taking
the three circumstances individually, it will be noticed that the first
circum-stance on account of which a wife is not entitled to claim
Maintenance Allowance from her husband is that she is living in adultery.
Now, adultery is the sexual intercourse of two persons, either of whom is
married to a third person. This clearly supposes the subsistence of
marriage between the husband and wife and if during the subsistence of
marriage, the wife lives in adultery, she cannot claim Maintenance
Allowance under Section 125 of the Code of Criminal Procedure.

The second ground on which she would not be entitled to Maintenance
Allowance is the ground of her refusal to live with her husband without any
sufficient reason. This also presupposes the subsistence of marital
relations between the parties. If the marriage subsists, the wife is under
a legal and moral obligation to live with her husband and to fulfil the
marital obligations. She cannot, without any sufficient reason, refuse to
live with her husband. “Sufficient reasons” have been interpreted
differently by the High Courts having regard to the facts of indivisual
cases. We are not required to go into that question in the present case as
admittedly the marriage between the parties came to an end on account of a
decree for divorce having been passed by the Family Court. Existence of
sufficient cause on the basis of which the respondent could legitimately
refuse to live with the petitioner is not relevant for the present case. In
this situation, the only question which survives for consideration is
whether a wife against whom a decree for divorce has been passed on account
of her deserting the husband can claim Maintenance Allowance under Section
125 Cr. P.C. and how far can the plea of desertion be treated to be an
effective plea in support of the husband’s refusal to pay her the
Maintenance Allowance.

Admittedly, in the instant case, the respondent is a divorced wife. The
marriage ties between the parties do not subsist. The decree for divorce
was passed on 15th of July, 1995 and since then, she is under no obligation
to live with the petitioner. But though the marital relations came to an
end by the divorce granted by the Family Court under Section 13 of the
Hindu Marriage Act, the respondent continues to be “wife” within the
meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section
(1) which provides as under :-

“Explanation. – For the purposes of this Chapter –

(a) ………………………………………………………….

(b) “wife” includes woman who has been divorced by, or has obtained a
divorce from her husband and has not remarried.”

On account of the Explanation quoted above, a woman who has been divorced
by her husband on account of a decree passed by the Family Court under the
Hindu Marriage Act, continues to enjoy the status of a wife for the limited
purpose of claiming Maintenance Allowance from her ex-husband. This Court
in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others, AIR
(1978) SC 1807, observed as under :-

“9. This provision is a measure of social justice and specially enacted to
protect women and children and falls within the constitutional sweep of
Article 15(3) reinforced by Art. 39. We have no doubt that, sections of
statutes calling for construction by courts are not petrified print but
vibrant words with social functions to fulfil. The brooding presence of the
constitutional empathy for the weaker sections like women and children must
inform interpretation if it has to have social relevance. So viewed, it is
possible to be selective in picking out that interpretation out of two
alternatives which advances the cause-the cause of the derelicts.”

Claim for maintenance under the first part of Section 125 Cr.P.C. is based
on the subsistence of marriage while claim for maintenance of a divorced
wife is based on the foundation provided by Explanation (b) to Sub-section
(1) of Section 125 Cr. P.C. If the divorced wife is unable to maintain
herself and if she has not remarried, she will be entitled to Maintenance
Allowance. The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of desertion
by wife but she was held entitled to Maintenance Allowance as a divorced
wife under Section 125 Cr.P.C. and the fact that she had deserted her
husband and on that basis a decree for divorce was passed against her was
not treated as a bar to her claim for maintenance as a divorced wife. See :
Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl. L.J. 36. The Allahabad High
Court also, in the instant case, has taken a similar view. We approve these
decisions as they represent the correct legal position.

Learned counsel for the petitioner then submitted that once a decree for
divorce was passed against the respondent and marital relations between the
petitioner and the respondent came to an end, the mutual rights, duties and
obligations should also come to and end. He pleaded that in this situation,
the obligation of the petitioner to maintain a woman with whom all
relations came to an end should also be treated to have come to an end.
This plea, as we have already indicated above, cannot be accepted as a
woman has two distinct rights for maintenance. As a wife, she is entitled
to maintenance unless she suffers from any of the disabilities indicated in
Section 125(4). In another capacity, namely, as a divorced woman, she is
again entitled to claim maintenance from the person of whome she was once
the wife. A woman after divorce becomes a destitute. If she cannot maintain
herself or remains unmarried, the man who was, once, her husband continues
to be under a statutory duty and obligation to provide maintenance to her.

Learned counsel for the petitioner then contended that the Maintenance has
been allowed to the respondent from the date of the application. The
application under Section 125 Cr.P.C. was filed by the respondent during
the pendency of the civil suit for divorce under Section 13 of the Hindu
Marriage Act. It is contended that since the decree of divorce was passed
on the ground of desertion by respondent, she would not be entitled to
Maintenance for any period prior to the passing of the decree under Section
13 of the Hindu Marriage Act. To that extent, learned counsel appears to be
correct. But for that short period, we would not be inclined to interfere.

It was for these reasons that the Special Leave Petition, being without
merit, was dismissed on September 10, 1999.