2017 Supreme(Guj) 961

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Paresh Chaturbhai Patel – Appellant
Vs.
Kokilaben Manilal Patel and Ors. – Respondents
Special Criminal Application (For Maintenance) No. 9318 of 2016
Decided On : 05-05-2017

Important Point:a) Section 125 of the Criminal Procedure Code. 1973 (Act I of 1974). which is in essence not punitive but preventive rather than remedial, has been enacted with the object of enabling the deserted wives, helpless and deserted children and destitute parents, to secure the much needed relief, so as to prevent vagrancy.b) Even after divorce granted in favour of the husband on the ground of desertion, the wife is still entitled for the allowance of maintenance

Headnote:Constitution of India---Article 227--- Indian Penal Code,1860---Sections 323, 498A, 504, 506(2) read with 114---Bombay Police Act, 1951--- Section 135--- Hindu Marriage Act, 1955--- Section 13--- Hindu Adoption and Maintenance Act, 1956--- Section 18--- Code of Criminal Procedure, 1973--- Section 125--- Protection of Women from Domestic Violence Act, 2005---divorce granted on account of desertation of wife---husband petitioner praying to be relieved of providing for maintenance---four issues:-(i) Is the divorced wife entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973, despite the fact that a decree of divorce was passed by the competent Court at the instance of the husband on the ground of the wife deserting the husband without any justifiable reason?---(ii) Can the statutory compassion in favour of the woman in distress in a dissolved marriage and the legislative anxiety and the concern to prevent vagrancy against the woman persuade the Courts to bring such a woman in a dissolved marriage within the sweep of the definition of deemed wife in Explanation (b) to Section 125 of the Cr.P.C.---(iii) Whether the term "wife" in Section 125(4) of the Cr.P.C. includes a divorced wife?---(iv) Can the changing norms in a society evidenced by the subsequent statutory instruments persuade the Courts to expand the entrenched concepts in society?---even after divorce granted in favour of the husband on the ground of desertion, the wife is still entitled for the allowance of maintenance --- Sec. 125(1)(b). Cr.P.C. must receive a liberal and expansive interpretation to include a destitute woman in distress whose marriage has been annulled by a decree under Sec. 12 of the Hindu Marriage Act--- the object, purpose and rationale of the deemed inclusion of certain non-wives in the category of wives by Explanation (b) it would be impermissible to deny the benefit of the legislative compassion to wives whose marriages have been annulled by Court at the volition of parties, on grounds available under Sec. 12.---A husband who has obtained divorce on the ground of moral contumaciousness of his wife is also liable to pay maintenance to his divorced wife if she is unable to maintain herself and he has sufficient means--- As in the case of marriage dissolved under Sec. 13 of the Hindu Marriage Act, whatever be the ground of annulment, the wife continues to be a deemed wife under Explanation (b).---"the wife" under Explanation (b) must include any woman whose marriage has been brought to severance by acts of spouses-including a decree passed by Court at their instance under Sec.12 or Section 13 of the Hindu Marriage Act. The realistic acceptance of the fact that the wife in an annulled marriage cannot, in fact, be placed by law to her position of maidenhood/spinster ship prior to marriage demands and warrants such an expansive interpretation of the expression "wife" in Explanation (b). The fact that consequences of an annulment are not declared in the Hindu Marriage Act specifically and the fact that for the purpose of Sees.16, 25 and 15 the law realistically accepts that such marriage cannot be ignored, overlooked or forgotten and has to be equated to a marriage dissolved under Sec.13 does also help us to accept the wider meaning for the expression "wife" in Explanation (b). The fact that under the personal law applicable to the parties, there is a liability for the husband in an annulled marriage to pay permanent alimony and maintenance to the wife under certain circumstances does also embolden us to include the wife in an annulled marriage also within the ambit of a deemed wife under Explanation (b)---"wife" under Section 125(4) of the Cr.P.C. would not include a divorced wife

       Result: Application Dismissed