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SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
Dr. Swapan Kumar Banerjee - Appellant
Versus
The State of West Bengal & Anr - Respondent
Criminal Appeal Nos.232-233 of 2015
Decided On : 19-09-2019
(a) Code of Criminal Procedure, 1973 - Section 125(4) - Wife divorced on ground of desertion - Entitled to maintenance. (Para 8)
(b) Code of Criminal Procedure, 1973 - Section 125(4) - Wife not filing petition for grant of maintenance during the pendency of the matrimonial proceedings - No ground to hold that she is not entitled to file such a petition later on. (Para 10)
(c) Code of Criminal Procedure, 1973 - Section 125(4) - Wife awarded maintenance - Husband averring that wife, being qualified architect, must be having sufficient income - Not tenable in absence of any proof of income of employment of the wife. (Para 11)
Facts of the case:
The short question raised in these appeals is whether a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973.
Finding of the Court:
Wife is entitled to maintenance.
Result: Appeal dismissed.
Certainly. Based on the provided legal document, here are the key points:
A wife who has been divorced on the ground of desertion is still entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (!) (!) .
The absence of a petition for maintenance during the pendency of matrimonial proceedings does not bar the wife from filing such a petition later (!) .
The definition of "wife" in Section 125(2) includes a woman who has been divorced by her husband and has not remarried, which extends the entitlement to maintenance even after divorce (!) .
The specific provision that no wife shall be entitled to maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or is living separately by mutual consent, applies only to women who are still in a marital relationship, not to divorced women (!) (!) .
Once a divorce decree is granted, the relationship of marriage ends, and the woman is no longer under obligation to live with her former husband. However, she retains the right to claim maintenance as a divorced woman (!) (!) .
The deeming fiction of a divorced woman being treated as a wife for the purpose of maintenance is limited to the context of entitlement to claim maintenance and does not imply an obligation to live with the ex-husband (!) .
The fact that a wife did not file a maintenance petition during the matrimonial proceedings or while living separately does not preclude her from filing such a petition afterward (!) .
The court emphasizes that the husband's income alone cannot be presumed to determine the wife's income; evidence must be led to establish her earning capacity. In the absence of such proof, no presumption can be made that she has sufficient income to support herself (!) (!) .
The court dismissed the appeals, affirming that the wife is entitled to maintenance despite her divorce on grounds of desertion and her not having filed a maintenance petition earlier (!) (!) .
The decision clarifies that the entitlement to maintenance for a divorced woman is independent of her remarriage status and that the legal provisions support her right to claim maintenance even after divorce (!) .
Please let me know if you need further assistance or specific legal interpretations.
JUDGMENT :
DEEPAK GUPTA, J.
1. The short question raised in these appeals is whether a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C.).
2. We may refer to the relevant portion of Section 125 of the Code of Criminal Procedure:-
"125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
x x x x x x x x x
x x x x x x x x x
x x x x x x x x x
Explanation.– For the purposes of this Chapter,-
x x x x x x x x x
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) x x x x x x x x x
(3) x x x x x x x x x
(4) No Wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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.
x x x x x x x x x”
3. It is the contention of Mr. Debal Banerjee that in terms of sub-section (4), no wife, who has deserted her husband can claim maintenance under Section 125 of the Cr.P.C. His further submission is that since in terms of the explanation wife includes a divorced woman, therefore, even a wife who has been divorced on the ground of desertion would not be entitled to maintenance in view of sub-section (4). Mr. Debal Banerjee has very candidly placed before us three judgments of this Court which take a view contrary to the one being canvassed by Mr. Banerjee before us.
4. In Vanamala Vs. H.M. Ranganatha Bhatta, (1995) 5 SCC 299, this Court dealt with a similar issue and held as follows:
"3. Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses 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 not exceeding Rs 500 in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (i) of the Explanation to the sub-section defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent had neglected or refused to maintain her. Counsel for the respondent, however, invited our attention to sub-section (4) of Section 125, which reads as under:
125.(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.
On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said sub-section does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the woman to live with her husband? Similarly there would be no questi
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