Hon'ble Dr. Justice D.Y. Chandrachud Hon'ble, Mr. Justice Sanjay Kishan Kaul
Can a wife demand maintenance despite being divorced by the husband on the ground of desertion?
- In the present case, the petitioner was Manoj Kumar (husband), and the respondent is Champa Devi (wife). Based on desertion, the husband obtained the divorce order.
- Under section 125 Crpc, the wife filed a petition, and the petitioner was ordered to pay the amount of 1,000 a month as maintenance to the respondent as per the order passed by the learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, H.P., dated 17.9.2007
- Later, before the learned Sessions Court, Mandi, the respondent submitted a revision petition, which was determined on 12.6.2012, and the maintenance was increased from '1,000/- to' 3,000/- a month.
- Aggrieved by the decision, the husband brought a petition before the High Court of Himachal Pradesh and pleaded before the High Court that, having obtained a divorce decree on the grounds of desertion, he was under no duty, given the requirements found in Section 125(4) CrPC, to pay maintenance to the respondent. However, referring to various judgments the High Court directed the husband to grant maintenance to his deserter wife, whom he had divorced, from the date when the divorce was decreed.
- The husband approached the Supreme Court assailing the order of the High Court of Himachal Pradesh, Shimla.
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- It was contended that the petitioner had obtained a decree of divorce based on desertion was under no obligation to pay maintenance to the respondent given the provisions contained in Section 125 (4) Cr.P.C.,
- Additionally, since the decree of divorce was passed on the ground of desertion by wife, the respondent would not be entitled to maintenance for any period before the passing of the decree under Section 13 of the Hindu Marriage Act.
- The learned counsel for the respondent to claim maintenance also placed reliance upon the judgment of the Hon'ble Supreme Court in Rohtash Singh vs. Smt. Ramendri and others (AIR 2000 SC 952)
The Apex took into account the order of the High Court of Himachal Pradesh, which referred to the case of Vanamala vs. HM Ranganatha Bhatta(1995) 5 SCC 299 when determining the matter. Consequently, by the above-mentioned situation, she would be entitled to maintenance if she could establish that the respondent failed or declined to maintain her. The court also observed that it is equally obvious from the straightforward reading of sub-section 4 of Section 125 Crpc that the word 'wife' does not have the broad sense of including a divorced woman in the said sub-section. This is for the simple explanation that there should be no discussion of a divorced woman living in adultery or refusing to live with her husband without sufficient reason unless there are a husband and wife relationship. Similarly, husband and wife lived apart by mutual consent will not be in question since there is no requirement for consent to live separately after divorce. Thus, sub-section (4) of section 125 does not apply in the light of the case of a woman who has been divorced or who has received a divorce decree. Therefore, the claim is not well-founded.The Court, reiterating its previous position, claimed that a divorced wife still falls within the framework of Sec. 125 CrPC and is also entitled to maintenance.
The Supreme Court rejected the Special Leave petition filed by the husband and observed that For the last two decades, Section 125 of the Code of Criminal Procedure, including the explanation referred to in subsection (1) thereof, has been consistently interpreted by this Court. The High Court followed the above valid argument thus passing the order. For the reasons mentioned above, in the exercise of their authority under Article 136 of the Constitution, the court found no justification whatsoever for intervening with the order at issue.
Rohtash Singh vs. Smt. Ramendri and others (AIR 2000 SC 952) in which the Hon'ble Supreme Court held as follows: Learned counsel for the petitioner submitted that the respondent had been given maintenance from the date of the application. An application under Section 125 Cr. P.C. The respondent filed a civil claim for divorce according to Section 13 of the Hindu Marriage Act during the pending hearing. It is argued that, because the divorce decree was issued by the respondent based on desertion, she will not be entitled to maintenance for any period before the acceptance of the decree under Section 13 of the Hindu Marriage Act. And the point, it seems that learned counsel is correct. But we would not be inclined to interfere for that short time.