Nayanaben Ratilal Gohel vs State Of Gujarat & on 5 May, 2017

[Cites 47, Cited by 1]

Gujarat High Court

Nayanaben Ratilal Gohel vs State Of Gujarat & on 5 May, 2017

Bench: J.B.Pardiwala

                R/SCR.A/9355/2016                                            CAV JUDGMENT




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 9355 of 2016



         FOR APPROVAL AND SIGNATURE:



         HONOURABLE MR.JUSTICE J.B.PARDIWALA

         ==========================================================

         1     Whether Reporters of Local Papers may be allowed to
               see the judgment ?                                                          YES

         2     To be referred to the Reporter or not ?
                                                                                            NO
         3     Whether their Lordships wish to see the fair copy of
               the judgment ?                                                               NO

         4     Whether this case involves a substantial question of
               law as to the interpretation of the Constitution of India
                                                                                            NO
               or any order made thereunder ?


         ==========================================================
                            NAYANABEN RATILAL GOHEL....Applicant(s)
                                           Versus
                             STATE OF GUJARAT & 1....Respondent(s)
         ==========================================================
         Appearance:
         MR KIRTIDEV R DAVE, ADVOCATE for the Applicant(s) No. 1
         MR VIRENDRA BAHETI, ADVOCATE for the Respondent(s) No. 2
         NOTICE NOT RECD BACK for the Respondent(s) No. 2
         MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
         NOTICE SERVED BY DS for the Respondent(s) No. 2
         ==========================================================

             CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                       Date : 05/05/2017




                                           Page 1 of 39

HC-NIC                                   Page 1 of 39     Created On Sat May 06 01:28:51 IST 2017
                R/SCR.A/9355/2016                                                 CAV JUDGMENT



                                          CAV JUDGMENT

1 By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs:

"13 a. Your Lordships be pleased to admit this petition.

b. Your Lordships be pleased to issue writ of certiorari or any other appropriate writ, direction and/or order of Ld. 2nd Adnl. Civil Judge and JMFC, Surendranagar Dt. 16022016 in Cr.MA No.267 of 2012 and as confirmed by the Ld. Session Judge, Surendranagar by order Dt. 0609 2016 in Criminal Revision Application No.20 of 2016 are bad in law, without jurisdiction and those be quashed and set aside and the order of maintenance of the petitioner wife be restore.

c. Your Lordships be pleased to grant any other relief/s as may be deemed fit and just in the facts and circumstances of the case."

2 It appears from the materials on record that the applicant herein got married to the respondent No.2 on 15th May 2005. Soon after the marriage, matrimonial disputes cropped up. The respondent No.2 filed a Hindu Marriage Petition No.62 of 2009 for divorce. The learned Senior Civil Judge, Anand allowed the Hindu Marriage Petition and passed a decree of divorce thereby dissolving the marriage. The husband i.e. the respondent No.2 obtained a decree of divorce on the ground that the applicant had deserted him and also on the ground of cruelty. It appears that the appeal filed by the applicant herein was partly allowed. The first Appellate Court did not believe desertion, but affirmed the decree on the ground of mental cruelty.

3 The applicant preferred Second Appeal No.224 of 2013 before this Page 2 of 39 HC-NIC Page 2 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT Court, which came to be dismissed vide the judgment and order dated 24th January 2014.

4 It appears that after the dismissal of the Second Appeal filed by the applicant herein before this Court, the respondent No.2 filed an application under Section 127 of the Cr.P.C. for cancellation of the order of maintenance. The learned Magistrate allowed the application filed by the respondent No.2 and cancelled the order of maintenance passed in favour of the applicant herein.

5 The applicant, being dissatisfied with such order passed by the learned Magistrate, preferred the Criminal Revision Application before the Sessions Court at Surendranagar. The revision application also came to be rejected vide the order dated 6th September 2016.

6 Being dissatisfied, the applicant has come up with this application, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

7 Mr. Kirtidev Dave, the learned counsel appearing for the applicant submitted that his client is entitled to receive maintenance from her husband i.e. the respondent No.2 despite the fact that the marriage has been dissolved pursuant to the decree of divorce obtained by the husband. Mr. Dave submitted that the issue is no longer res integra in view of the decision of the Supreme Court in the case of Rohtash Singh vs. Smt. Ramendri [(2000) 3 SCC 180].

8 In such circumstances referred to above, Mr. Dave prays that there being merit in this application, the impugned orders passed by the Courts below be quashed.

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HC-NIC Page 3 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT 9 On the other hand, this application has been vehemently opposed by Mr. Virendra Baheti, the learned counsel appearing for the respondent No.2. Mr. Baheti submitted that the applicant is not entitled to receive maintenance in view of the fact that she treated her husband with cruelty and considering the same, a decree of divorce was granted by the competent Court under Section 13 of the Hindu Marriage Act, which came to be affirmed right upto this Court in the Second Appeal filed by the applicant - wife. He submitted that the term of "wife" under Section 125(4) of the Code of Criminal Procedure, 1973 would include a divorced wife.

10 In such circumstances referred to above, Mr. Baheti, the learned counsel appearing for the respondent No.2 prays that there being no merit in this application, the same be rejected.

11 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Courts below committed any error in passing the impugned orders.

12 The issue raised in this application as regards the right of the wife to receive maintenance, even after the dissolution of marriage, has been answered by me in the case of Paresh Chaturbhai Patel vs. Kokilaben Manilal Patel [Special Criminal Application No.9318 of 2016 decided on 5th May 2017]. I may quote the observations as under:

(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 Page 4 of 39 HC-NIC Page 4 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT 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?

17 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. The scheme of the section, as far as wives are concerned is selfcontained and rests on two primary concepts, viz., (I) that the husband must maintain his wife, and (2) that the wife must be virtuous and live with her husband. This section is not intended to be used by a wife whose marital tie is in subsistence, to claim maintenance on the grounds other than neglect or refusal to maintain. The circumstances which disentitle a wife to obtain an order for maintenance, as contemplated under Subsection (4) of Section 125, notwithstanding the existence of the foundation and the conditions for the exercise of jurisdiction, are (1) her living in adultery, (2) her refusal to live with her husband without sufficient cause, and (3) the fact that the husband and wife have been living separately by mutual consent. Subsequent to the passing of an order awarding maintenance in favour of the wife, as per Subsection (5) of Section 125 on proof of any one of the circumstances mentioned supra, the Magistrate shall cancel the order passed in her favour. Thus, the right of a wife whose marital tie has not been untied, to claim maintenance from her husband is subject to the condition that she is unable to maintain herself and also subject to the conditions enumerated under Subsections (4) and (5). It is to be noted that Explanation (b) to Subsection (1) of Section 125 of the new Criminal Procedure Code, with regard to the right to claim maintenance, states that the expression 'wife' includes a woman who has been divorced by or has obtained a divorce from, her husband, and has not remarried. There was no such Explanation in the old Code. The effect of the introduction of this Explanation is that even a woman who has been divorced from her husband or has obtained a divorce from him, is entitled to maintenance from him till she gets remarried, provided she is not living in adultery till such time. Of course, Page 5 of 39 HC-NIC Page 5 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT the other conditions enumerated under Subsections (4) and (5) are not applicable to such a divorced woman.

18 Section 125 of the Code of 1973 has to some extent altered the scheme of maintenance envisaged in the corresponding Section 488. Under the repealed Code it is only the 'wife' as the term is generally understood the female spouse in a subsisting marriage that could seek maintenance from the husband. But Section 125(1) of the new Code obliges a person who refuses or neglects to maintain a woman who was his wife and who had been divorced to maintain her if she is unable to maintain herself. Such obligation is to last until she remarries. The scope of the term wife is enlarged to take in the case of such a woman and this is by Explanation

(b) to Section 125 (1). Explanation (b) to that subsection reads thus :

"ExplanationFor the purposes of this Chapter,

(a) ... ... ... ...

(b) "wife" includes a woman who has been divorced by, has or obtained a divorce from, her husband and has not remarried."

19 The effect of the Explanation is evidently to read the term wife in Chapter IX of the Code as meaning not only the wife as generally understood but also a woman who has been divorced but who has not remarried. It may be noticed that Section 125(1) deals with the obligation of a 'person' and not of a husband or of a father or of a son. The scope of the Explanation is not to create a jural relationship between the divorced woman and the erstwhile husband. No new obligation outside the scope of the Code is sought to be imposed either on the divorced woman or her erstwhile husband by reason of the Explanation. The object of the Explanation is only to enable such a divorced woman to claim maintenance from her erstwhile husband until her remarriage. The very object of the provision in Section 125 of the Code is to provide for a minimum obligation on the part of a person to maintain his wife, children, parents and his divorced wife who is not remarried under certain circumstances. In regard to some of his dependants there may be a similar obligation under the civil law, but in awarding maintenance in the civil proceedings the considerations other than those which arise in the matter of a petition under Section 125 of the Code may arise. The quantum of maintenance may also differ in such proceedings. The provision in Section 125 is intended as a measure to prevent vagrancy and the responsibility is cast upon a husband or a father of a son as the case may be to give maintenance to the wife or to the children or to the parents. The Parliament, in its wisdom, has thought fit to include a woman who has been divorced by her husband as also one of those entitled to the benefits of Section 125(1), such benefit to subsist until her remarriage. It is not because she has any claim based on her status as a divorced wife. She is under no obligation to make any return to her erstwhile husband for the Page 6 of 39 HC-NIC Page 6 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT maintenance provided to her by Section 125(1) of the Code. The Explanation does not result in casting on her any marital obligation. Naturally so since on the dissolution of the marriage the marital tie is broken. It is in this background that I may have to consider the scope of Section 125(4) and in that context I may refer to Subsection (5) of Section 125 also. These subsections run as follows:

"125 (1) ... ... ... ...

(2) ... ... ... ...

(3) ... ... ... ...

(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.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

20 Subsection (4) of Section 125 provides for cases where a wife is to be denied maintenance on certain grounds notwithstanding the provisions in Section 125(1). Where an order under Section 125(1) has been passed subsequent circumstances may disentitle the wife to continue to receive such maintenance. Those are circumstances akin to the circumstances contemplated under Section 125 (4). Provision is made to meet this situation in Section 125(5). The circumstances which may disentitle a wife to receive maintenance (1) wife living in adultery (2) the wife without sufficient reasons, refuses to live with her husband and (3) the spouses are living separately by mutual consent.

21 Now I will come to the question whether I should read Section 125(4) as applicable to any person other than the female spouse in a subsisting marriage. It is true that the Explanation enlarges the scope of the term wife for the purpose of Chapter IX. But that, as I have indicated earlier, does not create any jural relationship between a divorced woman and her erstwhile husband. Evidently the object of the Explanation is to obviate repeated reference to the wife as well as the wife who has been divorced in appropriate places in the relevant sections. The operation of the Explanation is only to read the term wife in Chapter IX, as referring to wife as well as a divorced woman who has not remarried, if such, reference would not be inappropriate, Though a divorced woman may be understood by the term wife by reason of the Explanation the person who was her husband prior to such divorce will not be comprised within the term 'husband'. Section 125(4) refers to the right of the wife to receive an Page 7 of 39 HC-NIC Page 7 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT allowance from her husband. If the definition has not the effect of treating the person who is really: not a husband as the husband, then Subsection (4) will not be applicable to the case' of a divorced woman. There are other indications in Subsection (4) which make the subsection inapplicable to a divorced woman. A woman whose marital tie does not subsist cannot be guilty of adultery much less can she be said to be living in adultery. She may live a promiscuous life. But that would not render her guilty of adultery, for, adultery is a term that denotes an offence against the institution of marriage. The inclusive definition of the term 'wife' will not be sufficient to read promiscuous or immoral living of a divorced woman as of one living in adultery. There is no obligation on the part of a divorced woman to live with her erstwhile husband. In fact, one would not expect such a woman to do so. Even if she is willing her erstwhile husband may not be willing to oblige her. The provisions of the Code do not and are not intended to cast an obligation on him to permit his divorced wife to live with him. Subsection (4) of Section 125 conceives refusal to live with the husband without sufficient reason as sufficient justification for refusing maintenance. This presupposes a right and an obligation to live with the husband. Such a right and an obligation cannot be assumed in the case of divorced woman nor can a corresponding obligation in the erstwhile husband to keep the woman in his house be assumed. If so such a ground available for refusing allowance contemplated in Section 125(4) becomes inapplicable to the case of a divorced woman. So is the case with the provision that if the husband and wife are living separately by mutual consent the wife shall not be entitled to receive the allowance. No question of mutual consent would arise in the case of parties to a marriage which is dissolved. That clause is also evidently inapplicable to the case of a divorced woman. It is agreed that if I construe the term wife in Section 125(4) as referring to a divorced woman also the same construction must apply to Section 125(5). That would yield anomalous results. Assume that the same subsection applies to a divorced woman who has not remarried. It would mean that provision is made for cancelling the order for maintenance in the case of such a woman in that subsection. But there is a specific provision dealing with that matter and that is Section 127(3) of the Code. That section deals with the circumstances under which an order for maintenance obtained by a divorced woman could be cancelled. That subsection gives an indication that Section 125(5) covers only the case of a female spouse under a subsisting marriage. If that be so that should be the case with Section 125(4) also. The way I have construed Section 125(4) will only promote the object of the provisions in Section 125. The scope of the obligation of a person to maintain is extended in the new Code to embrace cases which were not within its scope under the repealed Code. One of the classes of persons brought in additionally within the scope of the section is women who have been divorced. While the legislature expected the erstwhile husbands to maintain them if the other conditions of the section applied, the legislature could not have expected them to perform any Page 8 of 39 HC-NIC Page 8 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT marital obligation for that reason or to keep the vow of chastity or loyalty to their erstwhile husbands. That would be unreasonable and unrelated to the object of providing for maintenance.

22 In the aforesaid context, this is the right stage for me to refer and rely upon the decision of the Supreme Court in the case of Rohtash Singh (supra). In Rohtash Singh (supra), the principal contention raised on behalf of the petitioner was that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the husband, an order for maintenance could not have been passed in favour of the respondent on account of Subsection (4) of Section 125 of the Cr.P.C. The Supreme Court negatived such contention and held as under:

"5. Subsection (4) of Section 125, Cr. P.C. provides as under : "(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."

6. Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by subsection (4) of section 125, Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.

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 presupposes 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.

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HC-NIC Page 9 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT "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 came to an end on account of a 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 only 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 under Section 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.

8. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be "wife" within the meaning of Section 125, Cr. P.C. on account of Explanation (b) to subsection (1) which provides as under : "Explanation. For the purposes of this Chapter

(a) ...........................................

(b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried."

9. On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her exhusband. This Court in Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 : (1979 Cri LJ 3), observed as under : "9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that sections of statutes calling for Page 10 of 39 HC-NIC Page 10 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause the cause of the derelicts."

10. Claim for maintenance under the first part of Section 125, Cr. P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to subsection (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 under Section 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 v. Smt. Anjali Dasi, 1983 Cri LJ 36 (Cal)). 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.

11. Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.

12. Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125, Cr. P.C. was Page 11 of 39 HC-NIC Page 11 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for that short period, we would not be inclined to interfere."

23 A threeJudge Bench of the Supreme Court in the case of Manoj Kumar (supra) relied upon the decision of Rohtash Singh (supra) and observed as under:

"1. We have heard learned counsel for the rival parties at some length.

2. Having perused the impugned order, we are satisfied, that the same is based on the two decisions rendered by this Court, firstly, Vanamala (Smt) vs. H.M.Ranganatha Bhatta, (1995) 5 SCC 299, and secondly, Rohtash Singh vs. Ramendri (Smt) and others, 2000(3) SCC 952. Section 125 of the Criminal Procedure Code, including the explanation under subsection (1) thereof, has been consistently interpreted by this Court, for the last two decades. The aforesaid consistent view has been followed by the High Court while passing the impugned order.

3. For the reasons recorded hereinabove, we find no justification whatsoever, to interfere with the impugned order, in exercise of our jurisdiction under Article 136 of the Constitution.

4. The special leave petition is accordingly dismissed."

24 In Vanamala (supra), the Supreme Court answering the very same issue, which I am called upon to answer, held as under;

"Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Subsection (1) of Section 125 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 the maintenance of his wife not exceeding Rs.500/ in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the subsection defines the expression 'wife' to include a woman who has been divorced by, or has obtained a Page 12 of 39 HC-NIC Page 12 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent has neglected or refused to maintain her. Counsel for the respondent, however,invited our attention to subsection (4) of Section 125, which reads as under: (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.

On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said subsection does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, subsection (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded."

25 In the case of Shamima Farooqui vs. Shahid Khan [AIR 2015 SC 2025] (Dipak Mishra, J.), in context with the applicability of Section 125 of the Cr.P.C. to a Muslim woman and the very object of Section 125 of the Cr.P.C. made certain very important observations, which I may quote as under:

"When centuries old obstructions are removed, age old shackles are either burnt or lost their force, the chains get rusted, and the human endowments and virtues are not indifferently treated and emphasis is laid on "free identity" and not on "annexed identity", and the women of today can gracefully and boldly assert their legal rights and refuse to be tied down to the obscurant conservatism, and further determined to ostracize the "principle of commodity", Page 13 of 39 HC-NIC Page 13 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT and the "barter system" to devoutly engage themselves in learning, criticizing and professing certain principles with committed sensibility and participating in all pertinent and concerned issues, there is no warrant or justification or need to pave the innovative multiavenues which the law does not countenance or give its stamp of approval. Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. They are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority. They should be able to say that they are the persons of modern age and they have the ideas of today's "Bharat". Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger an outsider. That is the truth in essentiality.

26 In the case of Smt. Sarojini Sahu vs. Siba Prasad Sahu [(1988) 66 CLT 490] (Justice G.B. Patnaik, as His Lordship then was) has been pleased to propound that a mere decree for divorce does not stand in the way of the wife to receive maintenance under Section 125 of the Code and a petition under that section is maintainable even if the husband obtains a decree for judicial separation or annulment of the marriage. His Lordship further held that "an order of maintenance to a wife can be made even though the husband has obtained a decree for divorce and the wife's right to receive the same is not fettered in any manner so long as she has not remarried. In this view of the matter, notwithstanding the decree obtained by the husband opposite party, petitioner No. 1, would be entitled to receive maintenance under Section 125 of the Criminal Procedure Code. . . . . . . . . . "His Lordship also considered the effect of the Civil Courts decree and held that even if the decree of a Civil Court is admissible under Section 41 of the Evidence Act but such decree for divorce itself does not disentitle the wife to receive maintenance and in that connection his Lordship held that "the right to receive maintenance under Section 125 of the Code flows from the statute and if all the preconditions are satisfied then that right cannot be taken away in any manner. The preconditions under Section 125 of the Criminal Procedure Code are that if the applicant is the wife and the husband neglected or refused to maintain the wife who is unable to maintain herself. If all the preconditions are satisfied, then the wife's right to receive maintenance under the Criminal Procedure Code remains unaffected by any decree of divorce even of a competent Civil Court." On the materials on record, learned Magistrate found that the preconditions have been satisfied and this finding has not been set aside by the revisional Court. In that view of the matter, in my opinion, the learned Sessions Judge grossly erred in law in disentitling the wife to receive maintenance merely because of a decree of divorce obtained by the husbandopposite party. . . . . . . . . ."

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HC-NIC Page 14 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT 27 I have to my advantage a very lucid and erudite judgment rendered by a Division Bench of the Kerala High Court in the case of T. K. Surendran vs. P. Najima Bindu and Anr. [2012 Cri. L.J. 1960]. The Division Bench has discussed the issue in details observing as under:

"11. We now rivet our attention on Sec. 125, Cr.P.C. It is unnecessary to extract the Section in detail. The Section deals with the obligation of persons having sufficient means who refuse or neglect to maintain their wives, legitimate or illegitimate children, father or mother. For our purpose in this case we shall pointedly refer to the rights/obligations in respect of the wife alone. Prevention of vagrancy is the signature tune of Sec. 125, Cr.P.C. Society has to prevent vagrancy. Vagrancy may lead to destitution and may have an adverse impact on the law and order situation. The concern under Chapter IX of the Cr.P.C. is hence undoubtedly the prevention of vagrancy. Legal/moral obligation of the person to maintain his wife is only the jurisprudential justification for the legislative prescription to prevent vagrancy. Whether personal law or the moral code in society (or any particular section of society) obliges a person to maintain his wife, children, father or mother or not, Section 125, Cr.P.C. mandates that he must maintain them if he has sufficient means and they are unable to maintain themselves. What we would like to emphasise is that the legislative mission and purpose is to prevent vagrancy and that is sought to be achieved by placing on the shoulders of persons having sufficient means, the statutory obligation to maintain their wives, children, father or mother who are unable to maintain themselves. In a socialist welfare State the State has the obligation as patron patriarch to prevent destitution. State which may not now have the means and schemes to discharge that duty, outsources that obligation by legislation to near relatives having sufficient means. To sum up, the yearning of the State to prevent vagrancy and destitution is the plank, basis or bedrock on which the right/liability under Sec. 125 rests.

12. The obligation to maintain the wife was stipulated even under Sec. 488 of the earlier Code. In 1973 when the Cr.P.C. was exhaustively amended, the legislature obviously perceived the unfortunate plight of women in terminated marriages who remain unmarried. The legislative concern/compassion flowing in favour of such wives of terminated marriages who remain unmarried found expression in the expansive inclusion of certain categories of women within the protective sweep of Sec. 125, Cr.P.C. It is thus that Explanation (b) was introduced by the Parliament in the Code of Criminal Procedure, 1973. This inclusion raised several eyebrows. It will be apposite straightaway to extract Explanation (b) which is Page 15 of 39 HC-NIC Page 15 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT crucial for the resolution of the controversy before us. Explanation

(b) to Sec. 125 reads as follows :

Explanation. For the purpose of this Chapter.

(a) xxxxx

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

13. Unilateral divorcees (wives) whose marriages stand terminated by acts of their husbands and persons whose marriages have been terminated by intervention of Courts at the instance of either spouse, are certainly included within the sweep of the inclusive definition of "wife". By the norms prevalent in society such divorced women (or women in terminated marriages) are not wives as ordinarily understood in language and law. The legislature by a bold intervention included women of such terminated marriages also within the sweep of the expression "wife" subject to an important rider that they should not have remarried.

14. What we intend to note is that the legislative compassion was in favour of a woman in a terminated marriage and who has not remarried. We may safely call it the concern in favour of a destitute woman who has no one to depend on after termination of the earlier marriage till she remarries. It is easy to identify the concern of the legislature and the malady which the legislature sought to remedy by the enactment of Explanation (b) to Sec. 125(1), Cr.P.C.

15. Societal realities cannot be ignored by a Court trying to ascertain the reason or reasons and the meaning of meanings which prompted the legislature to introduce such an unconventional definition for the 'wife' under Sec. 125, Cr.P.C. The legislature was not evidently concerned with the emancipated Indian women educated, employed and having properties. They are excluded by one stroke from the operation of Sec. 125, Cr.P.C. as the compassion of the legislature flows only in favour of a wife actual or deemed who is " unable to maintain herself ". The legislative compassion, empathy and sympathy was flowing towards that section of feminine humanity in India who following the traditional prescription did not deserve any freedom. She had to depend on her father during childhood, her husband during youth and on her children during old age. She had no right to aspire for freedom. She was a 'sub person' always in need of support and patronage from another. It is to the unfortunate plight Page 16 of 39 HC-NIC Page 16 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT of such deprived, underprivileged and marginalised feminine section of humanity that the legislature addressed itself and conferred the right under Sec. 125, Cr.P.C. by a bold inclusion under Explanation (b). Such a woman whose matrimony has been terminated divorced unilaterally or by intervention of Courts and who has not been able to find the successor to whom she can look up for dependence, is the recipient of the legislative compassion by the inclusive Explanation (b) to Sec. 125, Cr.P.C. In our mind there can be no doubt or confusion on this crucial aspect. The target group of the legislative compassion and concern is thus clearly identifiable. Ascertainment of legislature intention, though words used often inadequate, is the mission of the interpreter/adjudicator. The adjudicator/ interpreter shall not be unequal to the task. He should have the constitutional vision. He must resonate to the frequency of the legislative idealism. So viewed, the target group identification is crucial.

16. The Indian State, the functionaries of the State and even citizens have the duty to pursue the constitutional idealism exemplified in the preamble to the Constitution. Every one, the State, its functionaries the legislature, the executive and the judiciary and the citizen have all got the obligation to be sovereign, socialist, secular and democratic. Constitutional socialism is certainly not any competing political ideology. If so, the pluralist Indian Constitution would not have committed itself to any such competing political ideology as a fundamental constitutional value. The constitutional socialism has its foundation on humane humanism which the fundamental duty under Art. 51A(h) commands every Indian citizen to develop. Concern for the weak, compassion for the marginalised, sympathy and empathy for the deprived, helpless and hapless is undoubtedly the signature tune of Indian constitutional socialism. We find the compassion of the socialist legislature flowing in favour of the deprived section of feminine humanity who are unable to find a Saviour to give them comfort, protection and dignity of life consequent to the unfortunate termination of their matrimony and their inability to get settled in their life thereafter by remarriage.

17. How is the legislative prescription in Sec. 125, Cr. P.C. including Explanation (b) to Sec. 125, Cr. P.C. to be understood and interpreted by an adjudicator with due constitutional moorings and values. This is the question that calls for consideration.

18. The legislature is a body. Its concern and vision are reflected in the words of the Statute. Words and semantics have their Page 17 of 39 HC-NIC Page 17 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT limitation. The language of the legislature is that of the draftsman. No legislature can use language which covers all situations and can offer precise and specific resolution for the myriad and varied situations that may arise before the adjudicator/interpreter when law actually operates. Inadequacies of language cannot interrupt the flow of the legislature compassion. That is where the role of the interpreter/adjudicator comes in. The axiom that the legislature uses appropriate language and that the intention of the legislature is fully expressed in the language used in the Statute is trite. That Courts cannot legislate is equally trite. These are doctrines of expediency and not invariable truth. But all this cannot persuade an interpreter to abdicate his jurisdiction and obligation to decipher the meaning of meanings and the reason or reasons. An interpreter must have the trained competence to jump over insignificant fences and lead the polity to the legislative destinations. An interpreter who succumbs to technicality and throws his hands up too easily lacks the requisite constitutional commitment. He lacks foresight and vision of the promised constitutional and statutory destination. Imperfections and inadequacies of language cannot deter an interpreter when the legislative intentions and purpose are clearly identifiable.

19. In a situation like this, this Court can certainly draw inspiration from the words of Hon'ble Justice Krishna Iyer in paragraph 9 of Ramesh Chander Kaushal, Captain v. Veena Kaushal (AIR 1978 Supreme Court 1807). We extract the said passage below which can perpetually inspire adjudicator/interpreters struggling to find the meaning of meanings and the reason of reasons. Dealing with the interpretation of Sec. 125, Cr. P.C. Justice Krishna Iyer observed thus in paragraph 9 :

"This provision is a measure of social justice and specifically enacted to protect women and children and falls within the constitutional sweep of Art. 15(3) reinforced by Art. 39. We have no doubt that sections of Statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause the cause of the derelicts."

(Emphasis supplied) Page 18 of 39 HC-NIC Page 18 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT

20. Arguments have been advanced before us about the manner in which such a deemed inclusive definition of wife has to be understood. We have already noted that wife in language and law does not include a divorced wife (a wife whose matrimony stands terminated either unilaterally or by operation of law and who has not remarried). Legislature has employed the technique of including within the sweep of the expression "wife" in Sec. 125(1)

(a) nonwives who do not ordinarily fall within the meaning of the expression in law and language. It is artificial inclusion of certain persons within the sweep of a definition not justified by the meaning ordinarily assignment to the expression in language and law. There is actually a fiction and deeming pressed into service by the legislature. To include certain categories of women not ordinarily falling within the sweep of the expression "wife", the legislature has employed the technique of inclusive fiction. They are not wives stricto senso; but they are included as wives in the definition by the legislature. Can our claimant/wife be included in that target group of deemed wives, women is distress, is the burning concern before us.

21. As to how an inclusive definition has to be understood, counsel have advanced detailed arguments. Observations in paragraph 10 in State of Bombay v. Hospital Mazdoor Sabha (AIR 1960 SC

610) is pressed into service.

"It is obvious that the words, used in inclusive definition denote extension and cannot be treated as restricted in any sense. (Vide : Stroud's "Judicial Dictionary", Vol. 2, p. 1415). Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation".

22. It is unnecessary to advert to more precedents on this aspect. However, we remind ourselves of one subsequent decision in P. Kasilingam v. P.S.G. College of Technology (AIR 1995 SC 1395) where justice S. C. Agrawal observed that :

"the word "includes" when used enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import; but also those things which the clause declares that they shall include."

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23. A literal reading of Explanation (b) might convey that a woman in order to claim inclusion in the sweep of the expression "wife" by the deemed definition must necessarily have been divorced or obtained a divorce from her husband and must not have re married. What is the sweep of the expression "divorced by or has obtained a divorce from". Can by a process of interpretative expansion the wives in annulled marriages also be included within the sweep of Explanation (b)? This is the challenging controversy that is raised before us.

24. It may be apposite in this context to go to the body of Sec. 125 and the very fundamentals. Liability under Sec. 125 is only on the husband to maintain his wife. The liability is not on "the spouse"

having sufficient means to maintain the other spouse unable to maintain himself/herself. Only the man and not the woman can be made liable under Sec. 125 to maintain his spouse. It is relevant to note that though the legislature had cautiously included legitimate as well as illegitimate children within the sweep of Clauses (b) and

(c) of Sec. 125, the legislature did not choose to include the illegitimate, nonformal or de facto wives within the sweep of Sec.

125 by specific employment of words. It appears that the expression "wife" used in Sec. 125 was intended to refer to legitimate/legal wives. That undoubtedly is the interpretation of the Supreme Court in a line of decisions. We may broadly refer to the three mile stones namely Yamunabai Anantrao v. Anantrao Shivaram (1988 (1) SCC 530 : (AIR 1988 SC 644)); Vimala v. Veeraswami (1991 (2) SCC 375 : (1991 AIR SCW 754)) and Savitaben Somabhai Bhatiya v. State of Gujarat (2005 (3) SCC 636 : (AIR 2005 SC 1809)). The position appears to be well settled. Under Sec. 125 as interpreted in these decisions proof of formal and legal solemnization is necessary to bring a spouse within the sweep of the expression "wife" in Sec. 125(1)(a). Formal entry to the legal and valid institution of matrimony is essential as per these precedents. Mere relationships in the nature of marriage have to be distinguished from formal and legal marriages. As per the three decisions referred above the former is not entitled to and the latter alone is entitled to claim rights under Sec. 125, Cr. P.C. At a certain point of time in the development of society certainly such insistence on formal solemnization of marriage by performance of rituals became essential to confer on the spouses the status of legally wedded spouses. Marriage is the foundation of family and the most basic of all human institutions in society. The same has to be distinguished from nonformal relationships of expediency. Arrangements for carnal satisfaction mere satisfaction of physical demand of sexuality, have to be distinguished from the formal solemn relationship of marriage. Intention to enter matrimony Page 20 of 39 HC-NIC Page 20 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT should be unequivocally declared by formal solemnization of marriage in accordance with personal law. Intention to enter matrimony may be inferred from long cohabitation of parties and acts of parties. But wherever status is in dispute, proof of formal solemnization of marriage in accordance with personal law has to be insisted. This is the irreducible desideratum that Anatrao, Vimala and Savitaben insist.

25. In a knowledge society such insistence on solemnization by rituals will certainly be open to challenge. These rituals of solemnization were earlier insisted traditionally in ancient society to distinguish between a real intention to enter formal matrimony from other nonformal relationships. It may be difficult in a knowledge society to sell the idea that formal declarations in documents including unquestioned registered documents are insufficient and want of ritualistic solemnization would detract against such intention to enter matrimony formally. Solemnization used to be insisted only as unmistakable expression of intention to formally enter matrimony. Certainly in a knowledge society Courts cannot continue with such ritualistic insistence on performance of rituals for solemnization. For a modern Indian who has imbibed the constitutional fundamental duty to be reasonable to develop the scientific temper, humanism and the spirit of inquiry and reform, as insisted under Art. 51A(h), such insistence may appear to be empty and hollow. However, the fact remains that the law as it now stands insists on formal ritual solemnization of marriage in accordance with the respective personal law. Under the secular general law, formal verbal and express written declarations have been held to be sufficient. A right to be irrational in matters of faith cannot obviously be claimed even in our secular republic which tolerates all religious faiths. Bold innovations in law must come in a knowledge society where the citizens right to enter matrimony cannot depend on the involvement of the pundit, monk or khazi. By giving expression of their unmistakable intention to marry in unquestionable documents it must be possible in a knowledge society for a young man and woman, who do not deny their religion, to enter valid matrimony. We can certainly foresee a future date where emphasis and accent will not be on performance of empty rituals which may not have relevance in the modern society. The search in future will certainly be to unambiguous evidence of intention to create and enter such formal relationship of marriage. Expressed intention in undisputed documents may have to be given due weight undoubtedly in the proof of marriage in future.

26. The learned counsel for the claimant/wife and the amicus Page 21 of 39 HC-NIC Page 21 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT curiae laboriously contend that distinction must be drawn on the basis of the purpose for which proof of marriage is insisted. The purpose is important. For the purpose of succession and for ascertainment of legal status, totally different considerations may apply as distinguished from mere claims for maintenance, support and alimony. The observations of the Bombay High Court in Bhausaheb alias Sandu v. Leela Bai (AIR 2004 Bombay 283) cited by the learned amicus curiae does appear to be crucially relevant and perfectly acceptable to us :

"It would not be permissible to include in the term "wife" or "widow", that relationship which is not recognized by law. However, there can be class of persons who are "illegitimate wives or widows" who can be the subject of benefaction of law of maintenance, notwithstanding that eventually their legal status is annulled . For the purpose of the Succession Act and the Maintenance Act the terms "wife and widow"

would have a restricted articulate legal meaning, that by itself would not be the position when the matter arises for the purpose of providing the measures of sustenance on considerations of justice and fair play involved and basic to all human and social relations."

(Emphasis supplied)

27. We find considerable merit in this approach. Ascertainment of legal status for the purpose of succession etc. will have to be distinguished certainly from the ascertainment of the legal relationship for the purpose of mere avoidance of vagrancy. Sec. 125, Cr. P.C. is not in any way concerned with declaration of status. It deals only with the avowed object of preventing vagrancy in the polity. Ascertainment of strict legal relationship is not legally necessary when we consider the object and purpose of Sec. 125, Cr. P.C.

28. Winds of change are blowing across our judicial system. The concept that a de facto wife/illegitimate wife socalled is also entitled for maintenance is being progressively accepted. A perusal of the relevant provisions of the Protection of Women from Domestic Violence Act, 2005 (for short 'the DVA') makes the position eloquent. Monetary relief including maintenance is declared to be available to an aggrieved person under Sec. 20 of the DVA. An aggrieved person as per Sec. 2(a) is a woman who is or has been in a domestic relationship with the respondent. "Domestic relationship" is defined under Sec. 2(f) of the DVA as the Page 22 of 39 HC-NIC Page 22 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT relationship between two persons who live or have at any point of time lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. A shared household is again defined in Sec. 2(s) of the DVA to mean a household where the aggrieved person lives or has lived in a domestic relationship with the respondent. We need not delve deeper into the provisions of the DVA. The crux of the change brought about by the DVA is that the monetary relief of maintenance can be claimed not only by wives in legal matrimony but also by women related to men through relationships in the nature of marriage also. The law has taken a great stride forward to ensure security for and to prevent vagrancy in respect of such women who have relationships in the nature of marriage with the person against whom the claim is made. Not only those living in such relationship; but also those who at any point of time had lived together in such relationship are also entitled to the monetary relief of maintenance under Sec. 20 of the DVA.

29. The concept was well entrenched in our society that maintenance can be claimed only by a legitimate and legal wife and not by a woman who had shared a relationship in the nature of marriage. But changes have come about. Today women who share a relationship in the nature of marriage can also claim maintenance. Meretricious relationships are excluded; but other relationships in the nature of marriage which fall within the definition of "domestic relationship" in Sec. 2(f) of the DVA are reckoned as sufficient if those in such relationships live or had lived together in a shared household to entitle them to the relief of maintenance under Sec. 20(1)(d) of the DVA. Entrenched concepts are undergoing transformation/change. We are conscious of the decision in D. Velusamy v. D. Patchaimmal (AIR 2011 SC 479) in which guidelines are given to ascertain whether a relationship not amounting to formal marriage can be reckoned as sufficient to bring the relationship within the sweep of "domestic relationship"

in Sec. 2(f) of the DVA. We need now only observe that proof of the formal relationship of marriage is no more essential under the Indian law to entitle a woman to claim the monetary relief of maintenance under Sec. 20(1)(d) of the DVA.

30. This change in the law must necessarily get reflected in understanding the concept of wife under Sec. 125(1)(a), Cr. P.C. We take note of submission of the learned amicus curiae that under Sec. 26(1) of the DVA which we extract below, it is open to a claimant in a petition under Sec. 125, Cr. P.C. to claim the monetary relief of maintenance under Sec. 20(1)(b) :

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HC-NIC Page 23 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT "26. Relief in other suits and legal proceedings . (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceedings, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceedings was initiated before or after the commencement of this Act.

(2) Any relief referred to in subsection (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil Court or criminal Court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."

We agree with the learned amicus curiae that, in the light of Sec. 26 of the DVA, the provisions of the DVA in relation to the monetary relief of maintenance have been brought into Sec. 125, Cr. P.C. and it would be idle to attempt to understand the expression "wife" in Sec. 125 without reference to the concepts which have been accepted by the Indian legal system by the enactment of the DVA. By Sec. 26 we agree that provision to claim maintenance by a woman in nonformal relationship of marriage with the respondent has also been brought into Sec. 125, Cr. P.C. by incorporation. If the expression "wife" can be understood to include a woman in domestic relationship entitled to claim maintenance under Sec. 20(1)(d) of the DVA, there shall thereafter be no meaning or retionale in the insistence on proof of formal/legal relationship of wife to entitle her for maintenance under Sec. 125, Cr. P.C. "Wife" under Sec. 125, Cr. P.C. will then have to include a woman in domestic relationship under the DVA.

31. In the light of the DVA and particularly Sec. 26 thereof the decision in Anatrao, Vimala and Savitaben may definitely have to be revisited and reinterpreted. We do not think it necessary for us to come to any final conclusions on that question. The same is unnecessary for our purpose in this proceedings where we are only trying to understand whether the inclusive definition under Explanation (b) would take in a wife in an annulled marriage. We do note that the Supreme Court in Chanmuniya v. Virnedra Kumar Singh Gushawa ((2011) 1 SCC 141 : (AIR 2010 SC (Supp) 29)) has already referred the question to a larger Bench for decision. The Nation and the legal community are anxiously Page 24 of 39 HC-NIC Page 24 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT awaiting the decision in Chanmuniya. We are informed that the said case has not been decided yet by the Supreme Court.

32. We now come to the immediate problem before us as to whether the wife in an annulled marriage can fall within the inclusive definition under Explanation (b).

33. What is the legal effect of a decree for nullity under Sec. 12 of the Hindu Marriage Act ? Does it altogether obliterate and annihilate the duly solemnized marriage? What is the distinction between void marriages and voidable marriages? Is that distinction in any way relevant while considering the claim for inclusion of the wife in an annulled marriage also within the sweep of Explanation

(b) to Sec. 125(1), Cr. P.C.

34. According to the Hindu Marriage Act, the marriage can be void or voidable. A valid marriage can be ordered to be dissolved also. Under Sec. 11 of the Hindu Marriage Act certain marriages are declared to be null and void. Such null and void marriages can be treated as nonest by the parties and others. However, such marriage can be declared to be null and void by the Court by issuing a decree of nullity. A marriage will be null and void and can be declared to be null and void under Sec. 11 only if the marriage contravenes the conditions specified in Clauses (i), (iv) and (v) of Sec. 5. This is clear from Sec. 11.

35. Under Sec. 12 of the Hindu Marriage Act, certain marriages shall be voidable and may be annulled by a decree of nullity on any one of the four specified grounds under Sec. 12(1)(a) to (d). Such marriages, it is trite, are valid in accordance with law and will continue to be valid until the Court by a decree annuls the marriage on any one of the specific grounds. In short, the marriage is valid in law and will continue to be valid until it is annulled by a decree of nullity under Sec. 12. Precedents galore to suggest that such marriages are valid and even assuming that Grounds (a) to

(d) of Sec. 11 exist to vitiate the marriage, parties by their conduct can accept such marriage and in the absence of a decree for annulment such marriage will continue to be valid for all purposes. It is crucial to note that severance of a solemnized voidable marriage can be done only at the instance of the spouses. Such severance is only on their volition. This is crucial while considering the ply of Explanation (b) to Sec. 125(1), Cr. P.C. Page 25 of 39 HC-NIC Page 25 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT

36. Sec. 13 of the Hindu Marriage Act deals with divorce. By a decree for divorce, on grounds specified under Sec. 13, the marriage can be dissolved by the Court. The grounds are specified in Sec. 13. The effect of a decree under Secs. 11, 12 and 13 therefore appears to be different. The first under Sec. 11 is null and void. It can be treated as null and void by the parties and others. If necessary, the parties can seek the assistance of the Court for declaration of such nullity. In the eye of law such a marriage does not exist.

37. A decree of annulment brings to termination a marriage which in fact has been solemnized. But for such decree by which such marriage is brought to an end, the marriage would have continued to be valid. Parties have the option to reckon the marriage as valid. They have the option to seek severance by a decree for annulment.

38. The third category of terminated marriages are valid marriages. They continue to be valid. Their validity is accepted and conceded by the Court when it grants a decree for dissolution. The decree for divorce terminates the marital tie which is valid and accepted to be valid.

39. What are the consequences of a decree passed under any one of these three Sections Secs. 11, 12 and 13. This question assumes importance when we undertake the specific task of ascertaining whether a decree of annulment under Sec. 12 would enable the wife in such marriage to claim maintenance under Sec. 125, Cr. P.C.

40. For the purpose of the dispute before us it is not necessary to consider whether the wife whose marriage is or has been declared to be null and void under Sec. 11 of the Hindu Marriage Act would be entitled to claim maintenance under Sec. 125, Cr. P.C. The decisions in Anatrao, Vimala and Savitaben appear to clearly lay down that such a woman will not be a wife and would consequently not be entitled for maintenance under Sec. 125, Cr. P.C. We await the decision in Chanmuniya v. Virnedra Kumar Singh Gushawa ((2011) 1 SCC 141 : (AIR 2010 SC (Supp) 29)) and it is not necessary for us to express any opinion on the claim of such a woman for maintenance under Sec. 125, Cr. P.C.

41. About the claim of a woman whose marriage has been dissolved by a decree for divorce under Sec. 13 of the Hindu Marriage Act, there is no dispute. She will certainly be included within the sweep of Explanation (b) to Sec. 125(1), Cr. P.C. Page 26 of 39 HC-NIC Page 26 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT

42. The precise question to be considered is whether a woman whose marriage is annulled under Sec. 12 of the Hindu Marriage Act can be included within the sweep of Explanation (b) to Sec. 125(1), Cr. P.C. A reference to the language of Sec. 12 may be of relevance. A marriage attracting Grounds (a) to (d) of Sec. 12(1) "shall be voidable and may be annulled by a decree of nullity." This is all that is mentioned in Sec. 12. The effect or consequence of a marriage annulled under Sec. 12 is not declared by the legislature in any provision of the Hindu Marriage Act. The marriage is said to be voidable and may be annulled by a decree of nullity. This is all that is stated. We note again that such a marriage shall remain and continue to be valid for all purposes unless it is annulled by a decree under Sec. 12 of the Hindu Marriage Act. Parties have the option to treat the marriage as valid. If they do not go to Court and seek a decree annulling the marriage under Sec. 12 the same shall continue to be valid for all intents and purposes. A marriage duly solemnized gets annulled only if parties in their volition approach the Court to get the same terminated in accordance with the provisions of Sec. 12 of the Hindu Marriage Act. The consequence of such annulment is not specifically declared.

43. What are the consequences in fact and in law? This has to be considered. The learned counsel for the respondent/husband contends that once a marriage is annulled under Sec. 12 as a voidable marriage, it ceases to exist in the eye of law. Thereafter it is impermissible to reckon such voidable marriage as valid for any purpose. A decree of annulment under Sec. 12 will have the effect of obliterating and annihilating the marriage solemnized. Therefore it is not a case of a marriage being terminated as in the case of a decree for divorce/dissolution under Sec. 13. It is a case of there being no marriage at all. No rights or liabilities can stem or emanate from such a marriage which is annulled under Sec. 12 of the Hindu Marriage Act, contends counsel.

44. We find it difficult to persuade ourselves to accept this contention. The learned counsel for the claimant/wife contends that a decree of annulment cannot certainly restore the parties to their position prior to marriage, in fact. The solemnized marriage is a reality. Law cannot close its eyes to such solemnized marriage. Law cannot ignore the fact that the spouses had lived as husband and wife in such matrimony for some period of time. Law cannot afford to ignore the fact that it is the volition of the parties which had led to the annulment of the marriage under Sec. 12 of the Hindu Marriage Act. They could have treated the same to be valid.

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HC-NIC Page 27 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT Conduct of parties has a crucial bearing in a decree of annulment under Sec. 12.

45. We find force in this submission. In the Indian context where the virginity of a woman is given utmost importance, she can never, in fact, reclaim her status as a spinster after annulment of her marriage under Sec. 12 of the Hindu Marriage Act. She has lost her maidenhood. In the eye of society she has lost her virginity. Whatever be the law, on declaration of nullity or voidness of the marriage, in fact, she will continue to be the woman in a terminated marriage. Her maidenhood is lost. If she wants to enter matrimony again, society will reckon the same only as a re marriage with all its inadequacies and inconveniences. One cannot wish away a solemnized marriage merely because such marriage has been annulled at the volition of parties by a Court by passing a decree under Sec. 12. What we intend to note is that there is undoubted transformation of the status of a woman from a maiden to the woman in a terminated marriage. In fact, consistent with the societal norms she ceases to be a maiden. Her remarriage will ordinarily be a difficult and uphill task. She would be left in the lurch without any one to support until her remarriage takes place. We are only attempting to satisfy and convince ourselves that such a woman certainly falls within the target group of unfortunate women in whose favour the legislative compassion gets eloquent expression by the enactment of Explanation (b) to Sec. 125, Cr. P.C.

46. It is not as though the law assumes that such an annulled marriage can be ignored, overlooked or forgotten for all purposes. We shall now look into the eventualities pointed out by the learned amicus curiae and the learned counsel for the claimant/wife where the law realistically takes into account the different status of spouses in an annulled marriage. The law also does not reckon or accept that because of a decree for annulment, such marriage can be ignored, overlooked or forgotten for all purposes.

47. Before considering the specific instances under the Hindu Marriage Act, we take note of the submissions of Dr. Sebastian Champappilly, the learned amicus curiae on how other jurisprudential systems have considered the issue. The learned amicus curiae points out that in England under Sec. 23 of Matrimonial Causes Act, 1973 it has been made clear that in respect of financial provisions orders, a decree for divorce and a decree for nullity stand on the same footing. The learned counsel points out that in White v. White (2000) the House of Lords Page 28 of 39 HC-NIC Page 28 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT (decision dated 26102000) has instructed Courts to assume an equal split of matrimonial assets on divorce or nullity. All systems are realistically accepting progressively the need to have identical proprietory consequences following a decree for nullity and divorce, argues counsel. We take note of these submissions, though we do not want to found any conclusions on such submissions.

48. We now take into consideration Sec. 16 of the Hindu Marriage Act. We extract Sec. 16(2) which deals with the fate of children begotten in a marriage annulled under Sec. 12. Sec. 16(2) reads as follows :

"16. Legitimacy of children of void and voidable marriages . (1) xxx xxx (2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity."

A child born in such marriage annulled under Sec. 12 is equated with a child born in a marriage dissolved by a decree for dissolution under Sec. 13. All that we intend to take note is that the legislature itself has equated the consequences of a decree annulling marriage under Sec. 12 to a decree for dissolution (divorce) under Sec. 13 of the Hindu Marriage Act for a specified purpose. Depending on the purpose to be served/achieved it is possible, it is evident that the annulled marriage can be reckoned to have the same effect as a dissolved marriage. So far as the legitimacy of children born, Sec. 16(2) declares that there is no distinction between a marriage annulled under Sec. 12 and a marriage dissolved under Sec. 13. That to our mind is of crucial relevance.

49. Another instance is pointed out in Sec. 25. Even the wife of a marriage annulled under Sec. 12 is entitled for permanent alimony and maintenance. We extract Sec. 25(1) below :

"25. Permanent alimony and maintenance . (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on Page 29 of 39 HC-NIC Page 29 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent."

The Section comes into operation "at the time of passing any decree or at any time subsequent thereto". A question arose whether for the purpose of grant of permanent alimony and maintenance wife of a marriage annulled under Sec. 12 can be reckoned as identical to a wife in a marriage dissolved under Sec. 13. It is now trite after the decision in Rameshchandra v. Rameshwari (AIR 2005 SC

422) that the wife in an annulled marriage is also entitled for permanent alimony and maintenance under Sec. 25 of the Hindu Marriage Act. A reference to the following observations in paragraph 17 of Rameshchandra does appear to us to be crucially relevant:

"17. In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and voidmeaning nonexistent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (1993 AIR SCW 2548) (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree', it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Page 30 of 39 HC-NIC Page 30 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT Divorce under Section 13."

The learned Judges proceeded to consider the purpose and the rationale underlying the statutory stipulations and proceeded to hold in paragraph19 as follows :

"It is with the purpose of not rendering a financially dependent spouse destitute that S. 25 enables the Court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship."

50. Rameshchandra (as also the earlier decisions on which reliance is placed in that decision) is reckoned by us as authority for the proposition that an annulled marriage does not altogether deprive a financially dependent destitute wife of her right to claim maintenance/alimony on the basis of such annulled relationship of marriage. For the purpose of Sec. 25, it is crucial that the wife in an annulled marriage under Sec. 12 is reckoned as identical to a wife whose marriage is dissolved by a decree for dissolution of marriage under Sec. 13. Under the civil (personal law) the woman in an annulled marriage is entitled to claim permanent alimony and maintenance. That must carry us far in the journey to ascertain whether such a woman in an annulled marriage is entitled to claim maintenance under the secular law (Code of Criminal Procedure) where the accent is to prevent destitution and vagrancy. If she can claim such permanent alimony and maintenance under the personal law under certain conditions, we can locate no valid reason to deny such maintenance under the secular law if she satisfies the conditions specified in such law.

51. It of course true that Sec. 25 permits even the wife whose marriage is declared to be null and void by a Court under a decree passed under Sec. 11 to be eligible to claim maintenance. We need not delve deeper into the claim of a wife whose marriage is declared null and void by a decree under Sec. 11. What we need note is only that no such right is seen conceded to a woman in respect of whose marriage no decree whatsoever is claimed and the marriage is reckoned to be null and void and ab initio by the declaration under Sec. 11. We take note of Sec. 25 only to satisfy ourselves that annulment of marriage under Sec. 12 does not obliterate or annihilate the solemnized marriage for the purpose of granting permanent maintenance/alimony under Sec. 25. For the purpose of Sec. 25, there is equation of the wife in an annulled marriage under Sec. 12 with the wife in a dissolved marriage under Sec. 13.

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52. Our attention has now been brought to Sec. 15 of the Hindu Marriage Act. We extract Sec. 15 below :

"15. Divorced person when may marry again . When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."

(Emphasis supplied) This section deals with the right of a spouse in a marriage dissolved by a decree for divorce to marry again. By the plain language of Sec. 15 of Act can apply only "when a marriage has been dissolved by a decree for divorce". Even though the Hindu Marriage Act speaks of declaration of nullity of a void marriage under Sec. 11, annulment of a voidable marriage under Sec. 12 and the dissolution of a valid marriage by a decree for divorce under Sec. 13, Sec. 15 specifically refers only to an instance when a marriage has been dissolved by a decree for divorce. The question arose whether the spouse in an annulled marriage under Sec. 12 is also subject to the same restriction/disability in respect of remarriage. Going by the plain and express words of Sec. 15, it was possible to contend that it applies only to a person whose marriage has been dissolved by a decree for divorce under Sec. 13. The Supreme Court in Smt. Lata Kamat v. Vilas (AIR 1989 SC 1477) unambiguously came to the conclusion that spouses in an annulled marriage under Sec. 12 or in a dissolved marriage under Sec. 13 would all fall within the sweep of the expression "dissolved by a decree for divorce". The following observations in paragraph7 of Smt. Lata Kamat does appear to us to be crucial:

"It is no doubt true that these two sections have different phraseology. In Sec. 12 it is said that the marriage be annulled by a decree of nullity whereas in S. 13, the phraseology used is "dissolved by decree of divorce" but in substance the meaning of the two may be different under the circumstances and on the facts of each case but the legal meaning or the effect is that by intervention of the Court the relationship between two spouses has been severed either in accordance with the provisions of S. 12 or in accordance with the provisions of S. 13. Probably it is because of this Page 32 of 39 HC-NIC Page 32 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT reason that the phrase 'decree of nullity' and 'decree of divorce' have not been defined."

(Emphasis supplied)

53. Later in the same judgment in paragraph7 the learned Judges proceeded to make the following observations:

"This phrase 'marriage has been dissolved by a decree of divorce' will only mean where the relationship of marriage has been brought to an end by the process of Court by a decree."

The above observations in paragraph7 of Smt. Lata Kamat do appear to us to be crucially relevant as we are considering these issues for the purpose of deciding whether the expression "a woman who has been divorced by, or has obtained a divorce from her husband" in Explanation (b) to Sec. 125(1) would include the wife in an annulled marriage under Sec. 12. The dictum in Smt. Lata Kamat supports the claimant/wife.

54. We may straightway refer to the provisions of the DVA. The wife in the annulled marriage was certainly living in a relationship with her spouse in a shared household through a relationship in the nature of marriage. The marriage may have been voidable. It may have been annulled by a decree under Sec. 12. That does not take away or detract from the fact that the spouses had lived together in a shared household in a relationship " in the nature of marriage" though that relationship, on account of volition of the parties has subsequently been declared to be voidable and annulled. The spouses have gone through a ceremony of marriage. Their marriage has been duly solemnized. Consequent to such relationship created by such solemnization, they have lived together as husband and wife for some period of time. They did so live together in a shared household also. The mere fact that such relationship has subsequently been annulled by a decree under Sec. 12 cannot militate against the status of parties as persons in a domestic relationship and of their having lived in a shared household. In these circumstances, notwithstanding the subsequent decree under Sec. 12 annulling the marriage, the wife must be held to be entitled for monetary relief of maintenance under Sec. 20(1)

(d) of the DVA. We are conscious of an earlier reported decision by a learned single Judge in Surendran T. K. v. State of Kerala (2009 (3) KHC 569 : 2009 (3) KLT 967) between the same parties where it has been held that such a wife in an annulled marriage cannot be held to have shared a domestic relationship. As Page 33 of 39 HC-NIC Page 33 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT rightly pointed out by the learned amicus curiae , the said decision cannot any more be held to be valid in the light of the decision in D. Velusamy v. D. Patchaimmal (AIR 2011 SC 479).

Considering the social purpose which the DVA has to serve and considering the specific language employed in the definition of Sec. 2(f) ("domestic relationship") and Sec. 2(s) ("shared household"), it has got to be held that a woman who lives with the spouse in a solemnized marriage or had so lived with him after such solemnized marriage must be held to be an aggrieved person under Sec. 2(a) and she can claim against her spouse who falls within the sweep of the definition "respondent" in Sec. 2(q). Notwithstanding the subsequent annulment of marriage by a decree under Sec. 12 of the Hindu Marriage Act, the status of the parties as aggrieved person and the respondent is not affected and their past residence (prior to annulment) in the shared household on the strength of such solemnized marriage must certainly be held to entitle the wife/woman to the monetary relief of maintenance under Sec. 20(1)(d) of the DVA. Annulment of marriage under Sec. 12 of the Hindu Marriage Act cannot altogether obliterate or annihilate the solemnized marriage. Secs. 16, 25 and 15 as interpreted in binding precedents accept this position. Even if the marriage is annulled under Sec. 12 of the Hindu Marriage Act, the decree of annulment cannot militate against this fact that the man and woman had lived together in a shared household and were related to each other though a relationship in the nature of marriage. The marriage may have been voidable. It may have been annulled as a voidable marriage by a decree of annulment under Sec. 12 of the Hindu Marriage Act. But all these cannot militate against the fact that their relationship was (at least) in the nature of marriage. The spouses who lived together for sometime in an annulled marriage can certainly be held to have shared a domestic relationship as defined under Sec. 2(f) of DVA. In this view of the matter, we are unable to agree with the dictum in Surendran (supra). It has hence got to be held to be not valid. We do specifically overrule the said decision in Surendran T. K. v. State of Kerala (2009 (3) KHC 569).

55. We do, in these circumstances, have no hesitation to come to the conclusion that the expression "woman who has been divorced by or has obtained a divorce from her husband" in 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. To us, the core or the crux of the ingredients specified under Explanation (b) is that the woman must be one whose matrimonial relationship stands severed by acts of spouses including Page 34 of 39 HC-NIC Page 34 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT intervention of Court at their instance, and who has not re married. Going by the object, purpose and rationale of the deemed inclusion of certain nonwives 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.

56. A contention has been advanced with great fervor by the learned counsel for the respondent/husband that such interpretative expansion would make innocent husbands also liable under Sec. 125, Cr. P.C. A husband whose marriage has been annulled on account of contumacious conduct on the part of his wife offering a ground under Sec. 12(1)(a) to (d) will also be made liable to pay maintenance to his wife under Sec. 125, Cr. P.C. This is not justified. Such a consequence must be alertly avoided, contends the learned counsel for the respondent/husband.

57. We have taken note of this contention anxiously. Sec. 125, according to us, has nothing to do with contumaciousness except perhaps in the refusal or neglect to pay maintenance. If the relationship specified under Sec. 125, Cr. P.C. exists and a husband having sufficient means is refusing and neglecting to pay maintenance to his wife unable to maintain herself, Sec. 125 mandates payment of maintenance and the purpose simply is to avoid vagrancy and destitution. Moral contumaciousness is evidently irrelevant. It is more so in respect of a deemed wife under Explanation (b) to Sec. 125(1), Cr. P.C.

58. That it is not so is evident. We quote one example. A wife in matrimony who is living in adultery may not be entitled to claim maintenance under Sec. 125, Cr. P.C. But the moment her husband secures divorce on the ground of adultery, he becomes liable to pay maintenance to her in her capacity as a divorced wife. It is trite that the mere fact that divorce has been obtained by the husband on account of matrimonial contumaciousness of the wife is no reason for the divorced husband to claim absolution from the liability to pay maintenance to his divorced wife under Sec. 125, Cr. P.C. 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. In this view of the matter, we are unable to attach any crucial significance to the arguments advanced on the basis of moral contumaciousness of the wife which may have led to the passing of a decree for annulment under Sec.

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HC-NIC Page 35 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT 12 of the Hindu Marriage Act. 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).

59. The contention is laboriously raised that under Sec. 25 of the Hindu Marriage Act (we have already extracted Sec. 25(1)) the Court can take note of " the conduct of the parties and other circumstances of the case ". But when it comes to a claim under Sec. 125, Cr. P.C. of the wife in an annulled marriage, the Court will not be able to take note of the contumacious conduct of the parties. This would work out injustice, it is impassionately contended by the learned counsel for the respondent/husband.

60. We had adverted to Sec. 25 only to satisfy ourselves that the liability to pay permanent alimony and maintenance to the wife in an annulled marriage is recognized by law as per the personal law applicable to the parties. Under the personal law certain circumstances have to be taken into consideration. Under the secular law Sec. 125, Cr. P.C. the right to claim maintenance can be enforced if the circumstances mentioned under Sec. 125 are satisfied. The mere fact that while granting relief under Sec. 25 of the Hindu Marriage Act, the Court may be entitled to take note of certain other circumstances also (i.e. the conduct of the parties) cannot in any way entitle the respondent/husband to contend that such wife in an annulled marriage should not be included in the expansive interpretation of "wife" under Sec. 125(1)(b), Cr. P.C."

"68. We must note in this context that all the precedents cited above relate to the preDVA era. Revolutionary changes have been brought about and entrenched concepts prevalent in society have been shaken by the enactment of the DVA. Subsequent statutory instruments must certainly persuade the Courts to understand contemporary meaning of expressions in Statutes enacted in a bygone era. It would be myopic for a Court to attempt to understand the meaning of the expression "wife" in the inclusive definition under Sec. 125(1)(b), Cr. P.C. today without imbibing the current legal norms prevalent in society in respect of the claim of maintenance by a woman sharing a domestic relationship with the respondent. The endeavour of all Courts at all times must be to innovate and understand the language of legislations in tune with the norms currently prevalent in society, ushered in and accepted by subsequent pieces of legislations. In this view of the matter, we are satisfied that in the post DVA era attempt cannot be made to understand Explanation (b) to Sec. 125, Cr. P.C. divorced of the Page 36 of 39 HC-NIC Page 36 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT current context in societal and legal development.

69. To conclude, we hold that Explanation (b) to Sec. 125(1), Cr. P.C. must receive an interpretation consistent with the laudable legislative purpose, object and rationale to prevent vagrancy and avoid destitution. We take the view that "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 accent is that such wife in a terminated marriage unilaterally or by intervention of Court, must remain unmarried to claim inclusion within the ambit of deemed wife under Explanation (b). 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/spinstership 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 Secs. 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). We take the view that such a woman falls within the sweep of the definition of "wife" under Explanation (b).

70. Needless to say that wives belonging to other religious denominations whose voidable marriages have been annulled by a decree for nullity passed by Court at the instance of either spouse shall all fall within the inclusive definition of "wife" in Explanation

(b) to Sec. 125(1). However, so far as wives whose marriages are expressly declared by law to be null and void without intervention of Courts as in Sec. 11 of the Hindu Marriage Act, we do not express any final opinion in the light of the decisions in Anatrao, Vimala and Savitaben (supra), though we are certainly of the opinion that in view of Sec. 20 and Sec. 26 of the DVA they also deserve to be included. We do also await the decision in Chanmuniya (AIR 2010 SC (Supp) 29) (supra) on that aspect."

28 It thus emerges from reference to the series of citations referred to Page 37 of 39 HC-NIC Page 37 of 39 Created On Sat May 06 01:28:51 IST 2017 R/SCR.A/9355/2016 CAV JUDGMENT above that the Apex Court has not only disapproved the theory of debarring a divorcee to get maintenance on the ground of disentitlement under Section 125(4) of the Code, but also their Lordships have clearly and categorically explained that after divorce, the concept of living together being not enforceable in law, custom or practice, the factum of separate living does not by itself disentitle the divorcee to claim for maintenance under Section 125 of the Code.

29 In view of the aforesaid discussion, I find it extremely difficult to accept the submissions of Mr. Nanavati, the learned senior counsel appearing for the applicant that the term "wife" under Section 125(4) of the Cr.P.C. would include a divorced wife. So far as the case on hand is concerned, although the applicant obtained a decree of divorce under Section 13 of the Hindu Marriage Act on the ground that his wife i.e. the respondent No.1 deserted him for no good reason or any legally justifiable cause, yet in such circumstances also, the wife is entitled to claim maintenance under Section 125 of the Cr.P.C.

13 In view of the above, I hold that both the Courts below committed an error in passing the impugned orders.

14 In the result, this application is allowed. The order passed by the learned Sessions Judge, Surendranagar dated 6th September 2016 in the Criminal Revision Application No.20 of 2016 is hereby quashed and set aside. The consequential order passed by the learned 2nd Additional Civil Judge and J.M.F.C., Surendranagar dated 16th February 2016 in the Criminal Miscellaneous Application No.267 of 2012 is also quashed and set aside. It is declared that the applicant is entitled to receive maintenance from the respondent No.2, as earlier ordered by the Court concerned.

(J.B.PARDIWALA, J.) FURTHER ORDER At this stage, Mr. Baheti, the learned counsel appearing for the husband makes a request to stay the operation of the judgment and order pronounced today. In view of the settled position of law, I see no good reason to stay the operation of this judgment. The request is rejected.

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