Rajasthan High Court - Jaipur
Ramavtar Sharma vs Smt. Santosh on 24 April, 2001
Equivalent citations: 2001CRILJ2650
ORDER Shashi Kant Sharma, J.
1. This revision is directed against the order dated 13-6-2000, passed by Judge, Family Court, Jaipur, by which the said Court has accepted the petition filed by respondent Smt. Santosh and granted maintenance allowance for her and her minor child.
2. Record was called for. Notice was served and arguments were heard.
3. Brief facts relating to this revision are that marriage between the parties took place on 26th of April, 1983. The respondent left the house of petitioner. Petitioner filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was decreed on 30th July, 1993. In the matter, wife Santosh, filed an application under Section 125, Cr. P. C. against the husband Ramavtar, which was ultimately allowed by the lower Court by the impugned order dated 13-6-2000, hence this revision.
4. The argument of learned counsel for the petitioner is that because ultimately the Court has granted decree of divorce in favour of Ramavtar on the basis of desertion, therefore, wife Smt. Santosh was not entitled for maintenance and the learned Judge has wrongly allowed the application of wife Santosh. It is urged that the wife Santosh is earning Rs. 300/- p.m., therefore, also her application under Section 125, Cr. P. C. should not have been allowed.
5. On the other hand, learned counsel for the respondent argues that lower Court has discussed both these points in its judgment. It is argued that even if wife is earning Rs. 300/- p.m., this amount is not sufficient for maintenance of herself and her son and after discussing this fact, lower Court has allowed the application of Santosh. It is also argued that after passing the divorce decree, wife is not obliged to live with husband and therefore, after passing the divorce decree, wife is entitled for the maintenance from ex-husband.
6. I have considered rival contentions of both the parties and perused the entire record and examined the impugned judgment. Learned Judge has discussed both the points in his judgment. I agree with the view of learned Judge that even if wife is earning Rs. 300/- p.m. by working in 'Anganbadi', she cannot be denied her claim for maintenance for herself and for her minor son, because Rs. 300/- p.m. is meagre amount. Applicant Ram Avatar is Conductor in Roadways. He is earning about Rs. 6,000/- p.m. Lower Court has discussed and appreciated all the facts and circumstances of the case and after considering the same, allowed this application.
7. So far as second point is concerned that now decree of divorce has been passed on the ground of desertion, therefore, now she should not be allowed to get maintenance, there is a direct authority of Hon. Supreme Court on this point reported in Rohtash Singh v. Smt. Ramendri (2000) 2 JT (SC) 553 : (2000 Cri LJ 1498), wherein in it has been held as under (Paras 10 and 11 of JT) : (Paras 9A and 10 of Cri LJ) :-
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 Sub-section (1) of Section 125, Cr. P. C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife 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. 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.
8. Looking to the above judgment of Hon. Supreme Court, now it is clear that even if decree of divorce is passed against the wife on the ground of desertion, she is entitled to claim maintenance from the person to whom she was once the wife. This point is also discussed and appreciated rightly by the Lower Court. I am of the view that the impugned judgment passed by the lower Court is absolutely legal. There is no illegality or perversity in the same.
9. Consequently, there is no force in this revision and the same is dismissed.