Allahabad High Court
Madhusudan Mishra vs State Of U.P. And Anr. on 10 February, 1988
Equivalent citations: 1988CRILJ1247
ORDER V.P. Mathur, J.
1. Smt. Pushpa Mishra who claims to be the wife of Madhusiidan Mishra started proceedings under Section 125, Cr. P.C. through a petition which was numbered as 178/12 of 1983. Her contention was that since 1973 her husband Madhusudan Mishra had neglected to maintain her and she is unable to maintain herself. The husband is living with another woman. He has an income of not less than Rs. 1000/- per month and, therefore, she claims maintenance to the extent of Rs. 500/- per month.
2. Contest was put by Madhusudan Mishra and he took the stand that Smt. Pushpa Mishra who was his married wife herself left him and thus caused a desertion and in spite of a decree for restitution of conjugal rights she did not return and ultimately he had to obtain a decree of dissolution of marriage by way of divorce and now she is not entitled to any maintenance from him. It was also said that she was a double M.A. and had been a teacher for some time while now she is working as Manager in an Educational-Institution and was capable of earning her own livelihood and so also she was not entitled to any maintenance allowance.
3. Lastly, it was contended that his income is hardly Rs. 700/- per month and he has to look after a family of seven members including aged mother, sister and her two children and an insane brother-in-law and, therefore, also he was not in a position to pay anything.
4. The matter came up before Mr. Shyam Vinod, VIIth Munsif-Magistrate, Farrukha-bad and after recording evidence on 13-10-1983 he granted to Smt. Pushpa Mishra a maintenance amount of Rs. 200/- per month from the date of his judgment. Against this order the present revision has been preferred by Madhusudan Mishra.
5. Now the established facts are that the parties were married sometime in 1971. They lived as husband and wife for a short duration but according to the husband the marriage was not consummated. Thereafter they separated and the lady first lived with her parents and is now living in Farrukhabad. For a period of five years, between 1972 and 1977, she was a teacher in an Educational Institution. She is double M.A. The husband's monthly income is of Rs. 1200/- and the husband first obtained a decree for restitution of conjugal rights and when the wife did not obey it, he has also obtained a decree for dissolution of marriage by way of divorce and hence the lady was not entitled to any relief.
6. The case of Smt. Mahtab Begum v. Ansar Ahmad 1986 All LJ 1096, has been cited to support the argument that a claim for maintenance under Section 125, Cr.P.C. has for its premise neglect or refusal of the spouse to maintain the wife and in view of the proviso to Sub-section (2) if the husband offers to maintain his wife on the condition of her living with him, and she refuses to live with him, and the claim of the husband for restitution of conjugal rights exists on the finding that the wife had no reasonable ground to live separate from the husband, maintenance cannot be granted.
7. There is no quarrel with this legal position. But Section 25 of the Criminal Procedure Code clearly lays down that for the purpose of that provision of law a divorced wife will also be entitled to maintenance like a wife. My attention was however, drawn to the fact that the divorce was granted because the wife did not obey the decree for restitution of conjugal rights, and, therefore, she shall not be entitled to any maintenance because the husband was always ready and prepared to keep her and it was she who failed to honour the decree for restitution of conjugal rights also. My attention was invited to Cl. (4) of Section 125 of the Criminal Procedure Code which may be extracted as follows:
No wife shall be entitled to receive art allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent.
8. With reference to this Sub-clause (4). it is pointed out that there is no sufficient reason. on the part of the wife to live separate from the husband now.
9. There is an authority in support of the contention of the wife that she is entitled to maintenance. Explanation (b) appended to Section 125, Cr. P.C. lays down that a wife' includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Obviously Smt. Pushpa Mishra Will be covered by the definition of wife as given in Section 125 and Sub-clause (4) will also be clearly applicable to her case and she will have t6 show that that she is not returning back to husband for sufficient reasons. Only then she will be entitled to maintenance till; the time she remarries. In the case of Prakash Chandra Verma v. Smt. Prakashwati 1983 All LJ 766, it was held that a wife who has applied for maintenance under Section 125 is not disentitled to maintenance if she has not i remarried, merely on account of the fact that; the husband has obtained a decree of divorce or a decree tor judicial separation on the ground of-desertion. To quote a portion of that judgment:
Under Section 125(l)(a) a person having sufficient means is under an obligation to maintain not only his wife but also his divorced wife who has not remarried. The ground on which the decree for divorce was obtained is immaterial. Thus even though the decree for divorce was obtained by the husband on the ground of desertion of the wife he is required to maintain the divorced wife under Section 125(l)(a). Similarly, the finding of desertion by the wife in granting a decree for judicial separation is of no consequence in proceedings under Section 125 initiated after the decree for judicial separation is granted as the decree itself is sufficient reason for the wife not to live with her husband after it is passed.
10. In the caseof Bai Tahira v. Ali Hussain Fissalli Chothi the effect of Expl. (b) to Section 125(1) of the Code was considered and it was held that it was clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under Code. In another case of Syed Mukhtar Ahmad v. Smt. Moonis Fatrria 1981 All Cri C 224: 1981 All LJ 785 the observation was to the effect that once the husband divorces his wife or the wife obtains a divorce from her husband she becomes entitled to claim maintenance from her ex-husband provided she is unable to maintain herself and the husband has neglected to maintain her. Her right to claim maintenance would come to an end only if she remarries or lives in adultery or if she voluntarily surrenders her right to maintenance.
11. this Court also took the same view relying upon the case of Prakash Chandra Verma v. Smt. Prakash Wati 1983 All LJ 766 (supra) in the matter of Smt. Shanti Devi ' v. Basant Lal 1984 All Cri. C. 105. Therefore, the matter rests there and it has to be held that divorced wife is also entitled to maintenance provided she is unable to maintain herself and the husband is neglecting her to do so and she has not remarried or surrendered her right or is not living in adultery. None of these allegations has been made in contest of the present petition. This lady has neither remarried nor there is any allegation that she is living in adultery. We will shortly see whether she is able to maintain herself but this much is certain that so far as the husband is concerned, he has not paid a single pie to her towards maintenance. The mere fact that a decree for dissolution of marriage and separation has been obtained will not affect the wife's right even though a decree had been obtained for restitution of conjugal rights. If the husband had stopped after obtaining a decree for restitution of conjugal rights alone, the wife would not have had the right to seek maintenance because then she was under an obligation to return with the husband and, live with him but the husband has gone further. He has obtained a decree for dissolution of marriage by way of divorce and after this the wife cannot return back to him and this is a sufficient reason as contemplated under; Section 125(4) of the Criminal Procedure Code to entitle the wife to say that now she cannot go back and the husband will be bound to maintain her; other things remaining the same.
12. The only evidence which has been brought on record is that for a short duration of few years this lady was employed in an Educational Institution on a paltry amount of Rs. 60/- or Rs. 70/- per month. Undoubtedly she is a well educated lady having taken her M. A. in two subjects and in spite of that if she was able to get employment on a mere monthly salary of Rs. 60/- or Rs. 70/- only, then it can be said that she is as well unemployed. Considering her merit and husband's status this small amount of Rs. 60/-' or Rs. 70A could not have been sufficient for the maintenance and it has also ceased to be available now, as admittedly she is no more a teacher. It appears that it was a very temporary affair and the lady has not been able to get a permanent appointment giving her satisfactory earnings, so as to enable her to maintain herself. She is working as a Manager of an Educational Institution now and the evidence is that that is an honorary work. The husband is, therefore, bound to maintain her and there can be no escape from the conclusion that she is unable to maintain herself. The husband is a Professor. When his statement was recorded he gave out his salary to be Rs. 700/- per month and all inclusive he was drawing Rs. 1200/- per month then. Since then there has been revision in emoluments all along and it is definite that he is getting more salary than what he was getting so many years back. Under these circumstances, even if he has to maintain a family of 7 or 8 members, he can set apart Rs. 200/- per month for Smt. Pushpa Mishra, who is his divorced wife in order to ensure her bare maintenance. As such I do not find; any force in this revision, which stands dismissed accordingly.