A divorced wife, even if divorced on the ground of desertion, is entitled to claim maintenance under Section 125 of the Criminal Procedure Code.

ORDER :

B.K. Nayak, J.

Heard Learned Counsel for the parties.

1. Order dated 25.8.2012 passed by the learned S.D.J.M., Bargarh in Criminal Misc. Case No. 52 of 2012 directing payment of interim maintenance at the rate of Rs. 1000 and Rs. 500 respective in favour of the opposite party Nos. 1 and 2 u/s 125, Cr.P.C. Litigation expenses of Rs. 10,000 has been challenged in this criminal revision. The only contention raised by the learned Counsel for the Petitioner is that opposite party No. 1 who was the wife of the petitioner was divorced by virtue of a decree of divorce dated 8.3.2007 passed by the learned Civil Judge (Senior Division), Sambalpur in Matrimonial Case No. 6 of 2004 the ground of desertion and, therefore, in terms of Sub-section (4) of Section 125 of Cr.P.C. she is not entitled to get maintenance.

2. Learned Counsel for the Petitioner submits that since as per the explanation the wife includes a divorced wife and since under Sub-section (4), Section 125, Cr.P.C. the wife who has deserted the husband and refused to live with him without sufficient reason is not entitled to maintenance, a wife divorced on the ground of desertion is also not entitled to get maintenance.

3. Law on this point has already been settled by the Apex Court in the decision reported in Rohtash Singh v. Smt. Ramendri & Others, AIR 2000 SC 952 where delineating the various provisions of Section 125, Cr.P.C. the Apex Court held as under:

7. The second ground on which she would not be entitled to maintenance allowance is the ground of her refusal to live with her husband without any sufficient reason. This also pre-supposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations, she cannot, without any sufficient reason, refuse to live with her husband. 'Sufficient reasons' have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties case to an end on account of decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the Respondent could legitimately refuse to live with the Petitioner is not relevant for the present case. In this situation, the question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim maintenance allowance u/s 125, Cr.P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband's refusal to pay her the maintenance allowance.

9A. Claim for maintenance under the first part of Section 125, Cr.P.C. is based on the subsistence of marriage which claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125, Cr.P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to maintenance allowance as a divorced wife u/s 125, Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife (see Sukumar Dhibar Vs. Smt. Anjali Dasi, (1983) CriLJ 36. The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

4. This Court has also in the case reported in Jashelal Agrawal alias Jain Vs. Smt. Puspabati Agrawala, (1998) CriLJ 4740 has held that even if a decree of divorce has been passed against the wife on the ground desertion, she can claim maintena