GUJARAT HIGH COURT
J.B. Pardiwala, J.
Paresh Chaturbhai Patel —Applicant
versus
Kokilaben Manilal Patel and Anr. —Respondents
Decided on 5.5.2017

IMPORTANT POINT
Ground available for refusing allowance contemplated in Section 125(4) becomes inapplicable to the case of a divorced woman.

Headnote:Special Criminal Application (For Maintenance) No.9318 of 2016

       Criminal Procedure Code, 1973—Sections 125(4) and 127(2)—Petitioner husband obtained decree of divorce on ground of desertion against respondent wife—Earlier he was paying maintenance fixed in a petition under Section 125 Cr.P.C.—Petitioner filed application under Section 127(2) r/w 125(4) Cr.P.C. praying for cancellation of order of maintenance on ground that he had obtained decree of divorce on ground of desertion—Magistrate dismissed application—Sessions Court in revision rejected revision application—Petition invoking supervisory jurisdiction—Question was—Is the divorced wife entitled to claim maintenance under Section 125 Cr.P.C. despite fact that a decree of divorce was passed by competent court at the instance of husband on ground of wife deserting husband without justifiable cause? Yes

       Held: The picture that emerges from the materials on record is that the applicant filed a Hindu Marriage Petition for a decree of divorce on the ground that his wife i.e. the respondent No.1 had for no good reason deserted him, and thereby, failed to discharge her part of the marital obligations. The decree of dissolution of the marriage came to be affirmed right upto this Court. The applicant says that he should now be relieved of his liability to pay the maintenance of Rs.7,500/per month to his former wife.

       Now I will come to the question whether I should read Section 125(4) as applicable to any person other than the female spouse in a subsisting marriage. It is true that the Explanation enlarges the scope of the term wife for the purpose of Chapter IX. But that, as I have indicated earlier, does not create any jural relationship between a divorced woman and her erstwhile husband. Evidently the object of the Explanation is to obviate repeated reference to the wife as well as the wife who has been divorced in appropriate places in the relevant sections. The operation of the Explanation is only to read the term wife in Chapter IX, as referring to wife as well as a divorced woman who has not remarried, if such, reference would not be inappropriate, Though a divorced woman may be understood by the term wife by reason of the Explanation the person who was her husband prior to such divorce will not be comprised within the term ‘husband’. Section 125(4) refers to the right of the wife to receive an allowance from her husband. If the definition has not the effect of treating the person who is really: not a husband as the husband, then Subsection (4) will not be applicable to the case’ of a divorced woman. There are other indications in Subsection (4) which make the subsection inapplicable to a divorced woman. A woman whose marital tie does not subsist cannot be guilty of adultery much less can she be said to be living in adultery. She may live a promiscuous life. But that would not render her guilty of adultery, for, adultery is a term that denotes an offence against the institution of marriage. The inclusive definition of the term ‘wife’ will not be sufficient to read promiscuous or immoral living of a divorced woman as of one living in adultery. There is no obligation on the part of a divorced woman to live with her erstwhile husband. In fact, one would not expect such a woman to do so. Even if she is willing her erstwhile husband may not be willing to oblige her. The provisions of the Code do not and are not intended to cast an obligation on him to permit his divorced wife to live with him. Subsection (4) of Section 125 conceives refusal to live with the husband without sufficient reason as sufficient justification for refusing maintenance. This presupposes a right and an obligation to live with the husband. Such a right and an obligation cannot be assumed in the case of divorced woman nor can a corresponding obligation in the erstwhile husband to keep the woman in his house be assumed. If so such a ground available for refusing allowance contemplated in Section 125(4) becomes inapplicable to the case of a divorced woman. So is the case with the provision that if the husband and wife are living separately by mutual consent the wife shall not be entitled to receive the allowance. No question of mutual consent would arise in the case of parties to a marriage which is dissolved. That clause is also evidently inapplicable to the case of a divorced woman. It is agreed that if I construe the term wife in Section 125(4) as referring to a divorced woman also the same construction must apply to Section 125(5). That would yield anomalous results. Assume that the same subsection applies to a divorced woman who has not remarried. It would mean that provision is made for cancelling the order for maintenance in the case of such a woman in that subsection. But there is a specific provision dealing with that matter and that is Section 127(3) of the Code. That section deals with the circumstances under which an order for maintenance obtained by a divorced woman could be cancelled. That subsection gives an indication that Section 125(5) covers only the case of a female spouse under a subsisting marriage. If that be so that should be the case with Section 125(4) also. The way I have construed Section 125(4) will only promote the object of the provisions in Section 125. The scope of the obligation of a person to maintain is extended in the new Code to embrace cases which were not within its scope under the repealed Code. One of the classes of persons brought in additionally within the scope of the section is women who have been divorced. While the legislature expected the erstwhile husbands to maintain them if the other conditions of the section applied, the legislature could not have expected them to perform any marital obligation for that reason or to keep the vow of chastity or loyalty to their erstwhile husbands. That would be unreasonable and unrelated to the object of providing for maintenance.

       In the aforesaid context, this is the right stage for me to refer and rely upon the decision of the Supreme Court in the case of Rohtash Singh (supra). In Rohtash Singh (supra), the principal contention raised on behalf of the petitioner was that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the husband, an order for maintenance could not have been passed in favour of the respondent on account of Subsection (4) of Section 125 of the Cr.P.C. The Supreme Court negatived such contention. (Paras 4, 21 and 22)

       Result: Petition dismissed.