IMPORTANT POINT
A divorcee is entitled to maintenance under Section 125 of the Criminal Procedure Code, and courts can consider subsequent developments even without formal pleadings.

JUDGMENT :

(S.G. Mehare, J.) :

1. Heard learned counsel for the applicant and learned counsel for the respondent.

2. The respondent/wife had filed an application under Section 125 of the Criminal Procedure Code for maintenance against the petitioner/husband on the allegations that she was ill-treated since she was unable to procure a child due to thyroid. She filed the application on 21.11.2005. However, during the pendency of the application under Section 125, the facts came before the learned Magistrate that the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act was passed against the petitioner. These facts were admitted to both sides. However, the learned Trial Court ignoring the facts and rights arising out of the divorce to the ex-wife held that the respondent/wife failed to prove that she was refused and neglected to maintain and finally dismissed the application. The respondent/wife preferred a revision against the order of the Magistrate dated 06.07.2007 in Criminal Revision Application No.167 of 2007. The learned Adhoc Additional Sessions Judge quashed and set aside the order of the Magistrate by recording the finding that the learned Judicial Magistrate has brushed aside the subsequent fact of divorce and her entitlement to the maintenance under Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code. On 08.04.2008, he allowed the revision application and directed the petitioner to pay the monthly maintenance of Rs.1200/- per month from 21.11.2005.

3. Learned counsel for the petitioner/husband has vehemently argued that unless the pleading is amended in an application under Section 125, the Court cannot go into the question of entitlement of the maintenance to the wife under Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code. The learned Magistrate was right in considering the required ingredients under Section 125 of the Criminal Procedure Code. The respondent/wife failed to establish that she was refused and neglected to maintain by the petitioner/husband. However, the learned Adhoc Additional Sessions Judge exceeded its jurisdiction and granted maintenance in the absence of pleadings. However, he fairly conceded that the divorcee is entitled to the maintenance as provided under Section 125 of the Criminal Procedure Code. He has referred to the findings of both Courts and prayed to quash and set aside the judgment and order of the learned Adhoc Additional Sessions Judge dated 08.04.2008.

4. Per contra, learned counsel for the respondent/wife has vehemently argued that in view of the ratio laid down by the Hon’ble Supreme Court in the case of Rohtash Singh Vs. Smt. Ramendhri and others, 2000 Cri.L.J. 1498, the respondent/wife being a divorcee is entitled to the maintenance under Section 125 Explanation (b) to sub-section (1). He also argued that the learned Revisional Court has considered the relevant provisions of law and correctly recorded the findings that the entitlement of the divorcee has been brushed aside by the Trial Court. He argued that the change in the situation was to the knowledge of both sides and it was an undisputed fact. Therefore, her right to claim the maintenance being a divorcee was accrued. In the circumstances, the Revisional Court did not erred in law in granting the maintenance.

5. The first question raised by the learned counsel for the petitioner is that in the absence of pleading or amending the pleading about her divorce and entitlement, the Court can consider these facts.

6. The simple rule of pleading is that one party has to aver the facts and another party has to deny it. Where there is a question of fact, then rule of pleading is strictly applied. So far as the proceeding under Section 125 of the Criminal Procedure Code is concerned, it is a summary proceeding. If prima facie material is available on record to believe the case under Section 125, the Court may surely consider it particularly if the facts are admitt