Bombay High Court
Sushila vs Namdeo And Anr. on 11 January, 1991
Equivalent citations: II(1991)DMC31
JUDGMENT R.G. Sindhkar, J.
1. This is an application filed by the applicant challenging the order passed by the Additional Sessions Judge, Nagpur on 19.8.1989 in Criminal Revision Application No. 1098/85. That criminal revision application was directed against the order passed by the Judicial Magistrate, First Class Nagpur on 6.5.1985 in Criminal Case No. 95/83.
2. By the order passed by the learned Magistrate, an amount of Rs. 300/- per month was awarded to the present applicant who was the wife of the non-applicant. It is this order awarding maintenance that was set aside by the learned Additional Sessions Judge and aggrieved by this decision the present application has been filed.
3. The marriage between the applicant and non-applicant no. 1 took place sometime in the year 1974, 4 years later, an application bearing Misc Criminal Case No. 30/78 came to be filed by the applicant against the non-applicant no. 1 in the Court of Judicial Magistrate, First Class, Arvi, District Wardha. Maintenance amount of Rs. 75/- per month was awarded to the applicant from the date of the application. Revision Application No. 38/79 was preferred by the non-applicant no. 1 to the Sessions Court which came to be rejected. It was the case of the applicant that she was persuaded to go back to the non-applicant no. 1 and after her stay of 3-4 months there, she was again reached back to her father's house. Later Petition bearing No. 95/81 was filed by the non-applicant no. 1 in April 1981 against the applicant on the ground that she had deserted him. This was decreed on 30.7.1983 and a decree for divorce was passed against the applicant. It is after this decree that the applicant filed an application for maintenance in the Court of Judicial Magistrate, First Class, 4th Court, Nagpur and out of which proceeding, the present application has arisen.
4. In this application under Section 125 of the Code of Criminal Procedure, the applicant stated that she was illtreated at the hands of the non-applicant no. 1 and, therefore, she had to file an application for maintenance in which she succeeded in getting an award and after the unsuccessful revision application by the non-applicant no. 1, she was taken back to the non-applicant no. 1's house, but again driven out of that house. She further stated that a divorce petitition was filed under the Hindu Marriage Act and she could not defend herself because of poverty and eventually a decree for divorce came to be passed by the Court of Extra Assistant Judge, Nagpur. She further stated that she was entitled to separate maintenance allowances under the provisions of Section 125 of the Code of Criminal Procedure as she was unable to maintain herself and that the non-applicant no. 1 was earning about Rs. 800/- per month as a Teacher. It is this application that was opposed by the non-applicant no. 1 and he raised several contentions in reply to that.
5. The learned Magistrate was pleased to accept the case of the applicant and as stated earlier, awarded a sum of Rs. 300/- per month. He held that divorcee applicant was entitled to maintenance under the provisions of Section 124 of the Code of Criminal Procedure and since the non-applicant no. I had neglected and refused to maintain her, passing of the order had become necessary.
6. When the matter came up before the learned Sessions Judge, he framed two points for his consideration. The first point was as to whether the original applicant proved" that the non applicant no. 1 having sufficient means neglected or refused to maintain her and held in negative on this point. He thereafter held that the applicant was not entitled to maintenance as of right and rejected her original application setting aside the order passed by the learned Magistrate.
7. The facts which are stated above are not- in dispute. It is an admitted position that the non-applicant no. 1 filed a petition for divorce on the ground of desertion and succeeded in getting a decree for divorce. Though an attempt was made on behalf of the applicant to contend that the decree was passed because of her inability to defend herself, I do not think it would help the applicant in any way in getting rid of the effects of that decree In fact it has rightly been pointed out by the learned Counsel for the non-applicant no. 1 that the very basis for the application for maintenance is the existence of a decree and the status as a divorcee. It has been conceded that a divorcee is also entitled to maintenance under the provisions of Section 125 of the Code of Criminal Procedure because of the Explanation-Clause (b) which states that :
" 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
It is an admitted position that there has been no remarriage of the applicant and that she is a divorced lady.
8. The contention that has been upheld by the learned Additional Sessions Judge and which has been reiterated before me in this revision application is that in view of the fact that the applicant was herself guilty of desertion and which led to the decree for divorce, she is not entitled to maintenance under the provisions of Section 125 of the Code of Criminal Procedure. In this connection, strong reliance has been placed upon the decision of this Court in Sharadchandra Satbhai v. Indubai Satbhai and another (1978 Mh. L.J. 123). The head note reads:
"Where on a petition by the husband for judicial separation under Section 10 of the Hindu Marriage Act on the ground that the wife had deserted the petitioner, a decree for judicial separation is passed, the wife is not entitled to claim maintenance under Section 125 of the Criminal Procedure Code. When the Civil Court has determined the issue of desertion and held that the wife has left her husband without reasonable cause and against his wish and without his consent, it is plain and simple that she has refused to live with her husband without any sufficient reason and, therefore, the wife is not entitled to receive maintenance under Section 125. The fact that a decree for judicial separation has been passed in favour of the husband on the ground of desertion means that the wife is guilty of refusing to live with her husband."
Relying upon this decision, the learned Counsel for the non-applicant no. 1 submitted that in this case also since a decree for divorce was passed against the wife on the ground of desertion, she has disentitled herself to maintenance under the provisions of Section 125 of the Code of Criminal Procedure.
9. As against this, the learned Counsel for the applicant submitted that this was a case wherein a, decree for divorce was passed against the applicant and not for judicial separation. The contention is that so far as divorced woman is concerned, she is under no obligation to go and stay with her former husband or to assign satisfactory reasons as to why she was living separately from him. It is only upon such proof that the wife is entitled to maintenance and the status of divorced woman being entirely different and she being under no obligation to go and live with her husband and is consequently not called upon to explain why she was living separately from her husband. This is in my opinion crux of the matter and for this purpose, a reference could be made to the provisions of sub-section (4) of Section 125 of the Code of Criminal Procedure, It reads thus:
"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 refused to live with her husband, or if they are living separately by mutual consent."
This obligation which is cast upon the wife by the statute depends upon her liability to stay with her husband. If she is under obligation to stay with her husband or to say why she was not staying with her husband is there, then only it can be said that she would not be entitled to maintenance if she fails to do either of the two.
10. Reading the decision in the case of Sharadchandra, cited supra, on which reliance has been placed, I find that that was a case where a decree not for divorce, but for judicial separation was passed against the wife who was claiming maintenance under Section 125 of the Code of Criminal Procedure. A wife against whom decree for judicial separation is passed is still having the status of wife and may be under an obligation to go and stay with her husband before she could claim a right to be maintained by him. In fact, it was all the more so when the decree for judicial separation on the ground of desertion was passed. She has to make amends and go and stay with her husband, otherwise she would forfeit her right to claim maintenance from him. As against this, if there is a decree for divorce, there is no obligation upon the said divorcee to go and stay with her husband or to say why she does not stay with him. This being, with respect, the distinguishing feature, I' find that the reliance placed upon this decision by the learned Counsel for the non-applicant no. 1, is not correct.
11. On behalf of the non-applicant no. 1, another decision in Murlidhar Chintaman Waghmare v. Pratibha Murlidhar Waghmare and another (1985 Mh. L.J. 958) was relied upon. That in my view, with respect, is not applicable to the facts of this case before me. That was a. case in which an application for maintenance under the provisions of Hindu Adoptions and Maintenance Act, 1956 was filed by wife and she made an attempt to get maintenance under Section 125 of the Code of Criminal Procedure by filing an application and it is in such circumstances that the learned Judge observed :
"that the proceedings of the Civil Court are substantial whereas the proceedings under Section 125 of the Code of Criminal Procedure are of a summary nature. Where the Civil Court of a competent jurisdiction comes to the conclusion that the wife was not entitled to maintenance, the Criminal Court cannot sit in appeal over the said decision. This itself was sufficient to set aside the decision of the Additional Sessions Judge granting maintenance."
In the present case what has been urged on behalf of the non-applicant no. 1 is that the wife is not entitled to maintenance because there has been a decree passed against her for divorce on the ground of desertion at the instance of the non-applicant no. 1. The point in my opinion is distinct and different.
12. It was further urged on behalf of the non-applicants that the applicant in her application has not pleaded that the non-applicant no. 1 has neglected or refused to maintain her and, therefore, in the absence of an averment and proof, she is not entitled to maintenance. I am again not able to accept this aspect of the argument advanced. Rule of pleadings has not to be strictly enforced in an application under Section 125 of the Code of Criminal Procedure. It is the contention of the non-applicant no. 1 that the applicant is not entitled to maintenance because of ie decree passed against her. It is not his case that he has been providing any maintenance to her after passing of the decree. He disowns his liability to maintain her. In the circumstances, it will be assumed that there is not only neglect but refusal to maintain the applicant.
13. In this connection, the learned Counsel for the applicant has referred to a decision in Bai Tahira v. Ali Hussain Fissalli Chothia and another . It has been observed therein that:
"Section 125 requires, as a sine qua non for its 'application, neglect by husband or father. Where in a petition by a divorced wife under Section 125, the husband did not examine himself to prove that he was giving allowances to the divorced wife, his case, on the contrary, was that she had forfeited her claim because of divorce and the earlier consent decree; held that the husband had no case of non-neglect and hence, the basic condition of neglect to maintain was satisfied."
In the present case, the admitted position is that the husband had not given any maintenance to the wife since after passing of the decree for divorce. It is not necessary to mention the arguments advanced on behalf of the applicant even after the impugned order of maintenance passed in Misc. Criminal Case No. 30/7 9, the husband had not paid any amount. I find, therefore, that the neglect and refusal to maintain has been established on record. In my view, therefore, the learned Additional Sessions Judge was not right in reversing the finding recorded by the learned Magistrate and holding that the applicant was not entitled to maintenance. I, therefore, set aside the order dated 19.8.1989 passed by the Additional Sessions Judge and restore the' order dated 6.5.1985 passed by the Judicial Magistrate, First Class, 4th Court, Nagpur.