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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SOUMITRA SAIKIA, J.
Bijoy Seal S/o Lt. Naresh Chandra Seal – Petitioner
Versus
Smt. Sefali Seal D/o Lt. Jonakinath Seal – Respondent
Crl. Pet. No. 769 of 2012
Decided On : 30-09-2020
Maintenance - Divorced Wife - Section 125, Section 127 - The court discussed the provisions of Section 125 and Section 127 of the Criminal Procedure Code, 1973, and their interpretation by the Apex Court. The court highlighted that a mere divorce between the husband and wife does not preclude the divorced wife from claiming maintenance under Section 125. The court emphasized that the responsibility of the husband towards a divorced wife continues, and the divorced wife is entitled to maintenance unless she remarries or is able to maintain herself. The court also noted that the power under Section 127(2) can only be invoked for cancellation of maintenance when there are changed circumstances after the grant of maintenance under Section 125. The court held that the trial court's attention was not drawn to the lack of changed circumstances, and therefore, the order cancelling the maintenance was not justified. The court dismissed the revision petition and directed the trial court to consider the law laid down by the Apex Court in this context while passing an order under Section 127(2).
Fact of the Case:
The petitioner sought quashment of a judgment and order passed by the Sessions Judge, Dibrugarh, in a maintenance case filed by the wife under Section 125 of the Criminal Procedure Code, 1973. The husband had sought reduction of the maintenance allowance from Rs. 1,200 to Rs. 500 per month, citing financial hardship and loss of income. The wife contested the case, and the divorce was granted in favor of the husband. The husband then filed a petition under Section 127 seeking cancellation of the maintenance, which was allowed by the Judicial Magistrate. The Sessions Judge set aside the order and remanded the matter back to the Judicial Magistrate for fresh disposal.
Finding of the Court:
The court found that the mere divorce between the husband and wife does not preclude the divorced wife from claiming maintenance under Section 125. The court emphasized that the responsibility of the husband towards a divorced wife continues, and the divorced wife is entitled to maintenance unless she remarries or is able to maintain herself. The court also noted that the power under Section 127(2) can only be invoked for cancellation of maintenance when there are changed circumstances after the grant of maintenance under Section 125. The court held that the trial court's attention was not drawn to the lack of changed circumstances, and therefore, the order cancelling the maintenance was not justified.
Issues: The issues involved in the case included the interpretation of Section 125 and Section 127 of the Criminal Procedure Code, 1973, and the applicability of maintenance to a divorced wife.
Ratio Decidendi: The court's decision was based on the interpretation of Section 125 and Section 127 of the Criminal Procedure Code, 1973, as well as the principles established by the Apex Court regarding the entitlement of a divorced wife to maintenance. The court emphasized that a mere divorce does not change the status of a wife in the context of Section 125 and that the power under Section 127(2) can only be invoked for cancellation of maintenance when there are changed circumstances after the grant of maintenance under Section 125.
Final Decision: The court dismissed the revision petition and directed the trial court to consider the law laid down by the Apex Court in this context while passing an order under Section 127(2).
JUDGMENT :
SOUMITRA SAIKIA, J.
1. The Court proceedings have been conducted by means of creating a Virtual Court with the help of technology.
2. This criminal petition has been preferred by the petitioner, namely, Sri. Bijoy Seal, under Section 482 of the Criminal Procedure Code, 1973, seeking quashment of the Judgment and Order dated 12.07.2012, passed by the learned Sessions Judge, Dibrugarh in Criminal Revision No. 03(1)/2012. The petitioner and the opposite party, namely, Smt. Sefali Seal were husband and wife were married on 02.05.1995.
3. Because of differences which arose between them, the petitioner and the opposite party started to stay separately since the year 2004. The wife/opposite party filed an application under Section 125 Cr.P.C. claiming maintenance from the petitioner/husband @ Rs. 5,000/- per month. The case was registered as Case No. 01M/2004 before the Court of learned Additional Chief Judicial Magistrate, Dibrugarh. The learned Court of learned Additional CJM, Dibrugarh by order dated 06.07.2006 on contest allowed the petition and directed the petitioner/husband to pay maintenance allowance @ Rs. 1,200/- from the date of filing of the maintenance petition i.e. 19.01.2004 according to the English Calendar month. The husband was directed to pay the same by the 7th of the following month. Thereafter, in the year 2008 the husband under Section 127 Cr.P.C. filed a petition under Section 127 before the Court of learned Additional CJM, Dibrugarh. By the said petition under Section 127, the husband, namely, the petitioner herein prayed for variation of the earlier Order dated 06.07.2006 passed by the learned Court and to reduce the maintenance allowance from Rs. 1,200/- to Rs. 500/- per month. The grounds urged in the petition filed under Section 127 by the husband (petitioner herein) were the substantial loss of income and financially hardship. The petitioner further referred to a divorce case being Title Suit (D) Case No. 3/2004 filed, in the meantime, between the parties which was pending before the learned District Court, Dibrugarh at the relevant point of time when the petition under Section 127 was filed. It was further urged by the husband that by order dated 20.07.2005, passed in Misc. (J) Case No. 49/2004 under Section 24 of the Hindu Marriage Act, an amount of Rs. 1,200/- was also directed to be paid to the wife by the learned District Judge, Dibrugarh as maintenance pendent lite. Under such circumstances by the petition under Section 127, the husband sought for reduction of the maintenance from Rs. 1,200/- to Rs. 500/- per month.
4. The wife (opposite party herein) contested the case by filing the written objections.
5. In the meanwhile, the divorce case being Title Suit (D) No. 3/2004 was decreed in favour of the husband by the Judgment and Order dated 12.11.2009, passed by the District Judge, Dibrugarh, for dissolution of the marriage between the wife and the husband. By the said judgment, the marriage was dissolved by decree of divorce under Section 13(1)(i-a) and (i)(b) of the Hindu Marriage Act, 1955. In the said suit decreed one of the issues framed by the learned District Judge, Dibrugarh was “whether the allegations brought by the petitioner are true? If any, whether these allegations amount to cruelty and desertion?”
6. The learned District Judge by the said judgment decreed the title suit granting divorce by holding as under:-
7. The petition under Section 127 filed by the husband seeking variation of the order dated 06.07.2006 and reduction of the maintenance awarded came to be heard finally in the year 201
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