Point of Law: Section 125 of Code makes provision for grant of maintenance to wives, children and parents - Section 125(1) 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 maintenance of his wife not exceeding Rs.500/- in whole and to pay same to such person as Magistrate may from time to time direct - Clause (b) of explanation to sub-section defines expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried - In case it is not contended by respondent that appellant has remarried after decree of divorce was obtained under Section 13-B of Hindu Marriage Act - By virtue of definition referred to above she would, be entitled to maintenance if she could show that respondent has neglected or refused to maintain her - Counsel for respondent, 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.

ORDER :

1. Both these Criminal Revisions arise out of the same order dated 26.03.2018, passed in M.J.C. No.25 of 2018, dismissing the application under Section 127 Cr.P.C. filed by the applicant and in M.J.C. No.24/2018.

2. The applicant and the respondent were married to each other, who are now divorced. The applicant had earlier filed an application under Section 125 Cr.P.C., which was registered as M.J.C. No.71 of 2010, in which vide order dated 02.05.2010, the order was passed by the Family Court granting maintenance of Rs.3,500/- to the applicant to be paid by the respondent every month. At the subsequent stage, the applicant- Maya Kashyap filed an application under Section 127 of Cr.P.C. which is M.J.C. No.25 of 2018 praying for enhancement in the amount of maintenance granted and respondent filed an application under Section 125(4) of Cr.P.C. that applicant is now living in adultery and further, she herself is earning livelihood and capable to maintain herself, therefore, the applicant has lost entitlement for grant of maintenance. Both these applications have been decided by the impugned order in which the prayer of the respondent under Section 125(4) of Cr.P.C. was allowed and on that basis, the order dated 02.05.2010 in M.J.C. No.71 of 2010 has been set aside.

3. It is submitted by the learned counsel for the applicant that the order of maintenance was passed in the year 2010, subsequent to which, because of the rise in the price index and inflation, the applicant has entitlement for enhancement maintenance. The learned Family Court has not appreciated the same and committed error in the holding that the applicant is not entitled for enhancement in maintenance.

4. It is further, submitted by the learned counsel for the applicant that the order of maintenance in favour of the applicant could not have been assailed by the respondent under Section 125(4) of Cr.P.C., it is now the fact that the applicant and the respondent are now divorced. Therefore, there is no requirement on the part of the applicant to remain faithful to the respondent.

5. Reliance on the judgment of Supreme Court in the case of Vanamala (Smt.) Vs. H.M. Ranganatha Bhatta reported in (1995) 5 SCC 299, in which the Supreme Court has held that the word 'wife' mentioned in Section 125 (4) of Cr.P.C. does not have the extended meaning of including a woman who has been divorced. Therefore, when the relationship of husband and wife is no longer existing. Then, such a question cannot be raised, that a divorcee woman is living an adulterous or she is living separately without sufficient cause. It is further submitted that the facts brought to the notice of the Court by the respondent may indicate an affair but does not indicate that the applicant has remarried, therefore, her entitlement for maintenance is continuing. It has been similarly held by the Supreme Court in the case of Gurmit Kaur Vs. Surjit Singh @ Jeet Singh reported in 1996 SCC (1) 39. Therefore, the order impugned is erroneous and liable to be set aside. Prayer has been made to allow the revision in both the cases and grant relief to the applicant.

6. Learned counsel for the respondent opposes the submissions and submits that it had been the ground of contest of the respondent from the very beginning that the applicant is living an adulterous life. However, the proceeding under Section 125 of Cr.P.C. terminated on the basis of a compromise. The Section 125 (4) of Cr.P.C. is applicable to a divorced wife also. In explanation 'b' of Section 125(1) of Cr.P.C., it is provided that “the 'wife' includes a woman who has been divorced by, or has obtained the divorce from her husband or has not remarried.” Therefore, the applicant still has the status of wife of the respondent according to this definition. Hence, until and unless, she gets remarried, she has to maintain her dignity and live a chaste life.

7. Reliance has been placed on the judgment of Madras High Court in the case of M. Chinna Karuppasamy vs.