Since she was your legally wedded wife she is entitled to maintenance

2) even if marriage was not consummated Court would award her maintenance

If you proved before the court that she left your company without any sufficient reason and live separately with her own will, then her maintenance petition can be dismissed.

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.

As she admitted in her revision petition that she is doing PhD hence she is earning some stipends which can be presume as her earning, hence her revision petition is also liable to be dismissed on this ground alone.

Feel free to call

You are not obliged to pay the maintenance since she has deserted you, there are judgments of Supreme Court and High Court to this effect.

If she is ell qualified to maintain herself, then also she is not entitled for maintenance. this becomes another ground for you. Pursue the application for setting aside ell and file your vakaltnama in the revision petition for getting the revision dismissed.

Let me know if I can be of further help.

Regards

1) wife is highly qualified and can maintain herself

2) if there is substantial differences in your income Court can award your wife maintenance

Respected sir...

As per law you have to give maintenance but the best option here is that you can solve and take divorce by one time payment which shall be decided and negotiated by the court ...Only this is the best way because matter such as divorce and ur visit to court will harash you to such extent and give only extra tention...So avoid all the things and ask her to settle at one time.

Thanks

Yes you can deny maintenance to your wife as she is a scholar and can maintain herself very well but this has to be proved in the court.

If your amount transfer of 1.36 lakhs was not by court orders so that cannot be considered under the maintenance under 125 crpc and if the transfer was by court orders then the remaining calculated balance has to be cleared by you till the cancellation of the maintenance orders.

Maintenance can be denied in case you have obtained the divorce on the basis of cruelty as she has deserted you. To frame proper opinion, copy of judgement and order in divorce case is required.

Mr. A

FIrst of all in the present query it is not specifically mentioned here that before the marriage whether wife was/is employed or working any where else. Secondly the wife after the divorce how she is maintaining herself which is not specified here. Any way am giving my opinion on the basis of justice S.N. Dingra observation as under:-

Justice Dhingra observed that both the husband and the wife were equally qualified and had the potential to earn. The wife worked in a multi-national company before the marriage.

Observing that no court can tell a man to beg or borrow or steal to pay maintenance to his wife in case of estrangement, Justice Dhingra said: ``No law provides that a husband has to maintain his wife, living separately from him, irrespective of the fact that whether he earns or not.’’

The Magistrate and the Sessions Judge had rationalised their orders asking the husband to grant maintenance to his wife on the ground of his past `handsome income’ when he was in job."

Another aspect of "mental cruelty" is with regard to not cohabited or refusal by the wife and making against him false allegation in public is also a serious act of "cruelty". However, in the present case husband has already obtained decree of divorce on the ground of cruelties. But, the wife is entitle to get maintenance from his husband on the ground that the wife is not having sufficient mean to earn or she is house wife or uneducated .

It is not every divorced wife who can claim maintenance under section 125(1) of the Code. A woman who has been divorced by her husband is included in the first part of Explanation (b) to section 125(1). She can claim maintenance under section 125(1). In this category would normally, fall the case of a Muslim woman who has been unilaterally divorced by her husband in accordance with Muslim Personal law.

This category may also include a woman who, under the customary law applicable to some Hindus, has been unilaterally divorced by her husband. The second category falling under Explanation (b) to section 125(1), who can claim maintenance under the said section.

Pending your application for setting aside of the ex-parte maintenance, the executing court cannot proceed ahead with the execution proceedings. In case it still goes on to pass any adverse order against you, challenge the same in the High Court and you are bound to get a stay on it.

Sir,

Maintenance can't be denied unless and until you can show she has enough earning or bank balance to maintain herself.

Yes, your wife is entitled to get the maintenance, you need to contest before the court that she is well educated and well earned lady there is no need for interim maintenance.

If you had filed a petition for annulment of your marriage and got it then perhaps she may not be entitled for maintenance but since she stayed for 15 days in your house as your legally wedded wife, she is eligible for maintenance from you.

However it depends on the grounds by which you can reject her claim, i.e., if she has abandoned the matrimonial home without any valid reason and continuously deserted the matrimonial home, then you can put forth your arguments to reject her claim for maintenance and this decree of divorce may be used to support your pleadings.

She had also filed a revision petition for increasing maintenance in which she had admitted that she is pursuing PHD in Nursing. Can on this basis that she is well qualified and can easily maintain herself, maintenance be denied. Also After 3 months of marriage till the time she was in contact with me i had transferred 1.36 lakhs to her account for maintenance and paying her educational fees of MSC nursing.

When there was complete deadlock between us i had discontinued paying her.

Admittedly you have been sending her maintenance amount every month in the past whereas you claim she to have deserted your home or left your company.

Then what made you to give her maintenance amount regularly every month if you never had any contact with her after she left your house.

In my opinion, your case is bit weak however you can still fight on the basis of the steps suggested earlier.

If any wife refused to make physical relationship with her husband without any reason,she is not entitled for any maintenance. Infact you wife is qualified ,this you have to prove in revision.