Kerala High Court
M. Alavi vs T.V. Safia on 13 March, 1992
Equivalent citations: AIR1993KER21, AIR 1993 KERALA 21, (1995) 1 CURCC 387, 1992 (2) DMC 621, ILR(KER) 1992 KER 184, (1997) 2 MARRILJ 267, (1993) 2 CIVLJ 487, (1993) MAH LJ 851, (1993) CIVILCOURTC 454, (1992) 2 BOM CR 61, (1992) 2 DMC 623, (1992) 2 DMC 311, (1993) 2 HINDULR 149, (1997) 2 MARRILJ 157, (1992) 1 KER LJ 550, (1992) 1 KER LT 649, (1992) 2 HINDULR 416
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
ORDER K.G. Balakrishnan, J.
1. Revision-petitioner (husband) was the respondent in Crl. R. P. No. 85 of 1989 on the file of Sessions Court, Thalassery. The respondent (wife) herein filed an application under Section 3 of the Muslim Women (Protection of Rights) on Divorce Act (for short 'the Act') for maintenance during idat period and also for reasonable and fair provision for her future. The Chief Judicial Magistrate, before whom the application was filed, dismissed the application holding that the same is not maintainable. The learned Magistrate was of the view that the petitioner in the application was leading an adulterous life and so she is not entitled to get any relief under Section 3 of the Act. Aggrieved by that order respondent-wife filed revision petition before the Sessions Court, Thalassery. The Sessions Judge reversed the finding and held that the application for maintenance is maintainable and for determination of the quantum the matter was remanded to the trial Court. Aggrieved by that order the husband-petitioner has filed this revision.
2. The main thrust of argument of the revision petitioner's counsel is that the revision-petitioner's divorced wife has been leading an immoral life and so the revision-petitioner is not liable to pay any amount under Section 3 of the Act. Counsel for the revision-petitioner placed reliance on Section 125(4) of the Code of Criminal Procedure and contended that the general principles that govern the provisions for maintenance under Section 125, Cr. P.C. are applicable to a proceedings under Section 3 of the Act. The respondent's counsel, on the other hand, contended that the allegation that the respondent has been leading an immoral life is denied and even if such an allegation is true that will not disentitle her from claiming any relief under Section 3 of the Act.
3. Section 125, Cr. P.C. is a salutary provision intended to grant maintenance for wives, children and parents. For the purpose of the provisions of this Chapter, it is explained that 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. So under Section 125, Cr. P.C. a divorced wife also can maintain an application. Under Section 125(4) it is stated that "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". Learned counsel for the revision-petitioner submits that Section 125(4) says that the wife living in adultery is not entitled to get maintenance and this is applicable to woman who has been divorced by her husband. I am unable to accept this contention. Section 125(4) itself has no application to a woman who has already been divorced by her husband for the simple reason that a divorced woman can never be said to be committing adultery even if she has got promiscuous sexual relationship with other persons. In Oxford English Dictionary the word 'adultery' is defined as "violation of the marriage bed. Voluntary sexual intercourse of a married person with one of the opposite sex, whether unmarried or married to another". Violation of marriage bed is not only the ordinary meaning of the word 'adultery' but it is also the legal meaning of that word. The cardinal points for consideration is whether woman has "defiled her marriage" bed and if she is no longer a wife there cannot be any defilement or disowning of her marriage bed as she is a single woman then and has no marriage bed and married home. So, the term 'wife' used under Section 125(4), Cr. P.C. would only mean a woman whose marriage relationship is in existence. A divorced woman will not come within the amplitude of Section 125(4). So, the analogy drawn by the revision petitioner's counsel that the general principles in Section 125(4) are applicable to the proceedings under Section 3 of the Act cannot be accepted.
4. It may also be noticed that Section 3 begins with a notwithstanding clause and a plain reading of this section would clearly show that a divorced Muslim woman can file an application under Section 3 claiming various reliefs provided therein and the provisions of the Act do not say that she would not be entitled to get the reliefs if she had been living in adultery. It is not possible to read something into the Act which is not there. It is a corollary to the general rule of literal construction that nothing is to be added or taken from a statute unless there are strong grounds to justify the inference that legislature intended something which it omitted to state. The observations of trial Court that it is an unjust burden on a person to maintain a woman leading an adulterous life is incorrect. The trial Court was not fully aware of the nuances of the words "adulterous life". The Muslim Women (Protection of Rights) on Divorce Act was enacted to give certain benefits to the women who are neglected by their former husband. It is a social service legislation and by judicial interpretation it is not fair and proper to gravely narrow the scope of the enactments.
5. The Sessions Judge was fully justified in interfering with the order of the trial Court and in holding that the revision petition filed by the respondent therein is maintainable.
Crl. Revision Petition is without any merit and the same is dismissed with costs.