Himachal Pradesh High Court
Smt. Kesari Devi And Anr. vs Jagdev Singh on 5 October, 2004
Equivalent citations: 2005CRILJ1091, II(2005)DMC704
Author: K.C. Sood
Bench: K.C. Sood
ORDER
K.C. Sood
1. This revision petition arises out of the orders of learned Additional Sessions Judge (I), Kangra at Dharmshala, dated 18-12-2003.
2. In order to appreciate the controversy, relevant facts may be noticed ;
3. Respondent Kesari Devi (wife for short) was married to petitioner Jagdev Singh (husband for short). Wife laid a petition against the husband before the learned Judicial Magistrate, 1st Class, Dharamshala, for the grant of maintenance under Section 125 of the Code of Criminal Procedure. The maintenance was claimed for herself and her daughter, born out of the wedlock. Wife claimed that she was living separately, due to maltreatment of the husband. Husband admittedly is working as Head Draftsman in the office of Central Water Commission at Delhi and receiving approximately salary of Rs. 10,000/- per month.
4. This petition was resisted by the husband on the grounds :
(a) Wife left the Company of the husband along with the daughter. Husband filed a petition at Delhi, which was allowed and restitution of conjugal rights were decreed and, therefore, wife was not entitled to any maintenance;
(b) Respondent never refused to maintain the wife;
(c) Courts had no territorial jurisdiction to hear the petition.
5. The decree for the restitution was followed by a decree of divorce on the ground of desertion on the part of the wife.
6. The learned trial Magistrate by his judgment dated 19-11-2001 allowed the petition and granted maintenance of Rs. 500/- each to the wife and daughter. The maintenance was allowed from the date of filing of the petition.
7. Dissatisfied, the husband carried a revision petition before the learned Sessions Judge, Kangra at Dharamshala.
8. This revision petition was allowed by the learned Addl. Sessions Judge (I), Kangra at Dharamshala, by his impugned judgment, on the grounds that the wife withdrew from the society of the husband in the year 1992 and a decree for restitution of conjugal rights was passed against her which was followed by a decree of divorce on the ground of desertion.
9. Aggrieved wife is in this petition.
10. I have heard Mr. Vikas Bhardwaj, learned counsel for the wife and Mr. Ashok Sharma, learned counsel for the husband,
11. Learned Additional Sessions Judge, in my view, clearly erred in disallowing the maintenance on the ground that wife failed to join the company of her husband despite a decree of conjugal rights against her. It is ho longer res integra that a wife even after a decree of divorce on the ground of desertion is entitled to maintenance, until she remarries another person. Husband continues to be under statutory obligation to maintain the wife even after passing of such decree. Explanation to Sub-section (1) of Section 125 of the Code clearly indicates this intention of the Legislature. Section 125 of the Code reads : ;
(a)..........................................................................
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
12. A perusal of Explanation (b) clearly shows that for the purpose of grant of maintenance, under Section 125 of the Code, wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. The reason is not for to seek the object of Section 125 of the Code is to protect women and children from vagrancy and destitution. The Apex Court in Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675 : (2000 Cri LJ 1) observed that provision is not to be utilized for defeating the rights conferred by the Legislature on the destitute women, children or parents, who are victim of social environment. .
13. A divorced wife is entitled to claim maintenance from her former husband under the provisions of Section 125 of the Code till she remarries. Divorce, as pointed out by the Apex Court in Rohtash Singh v. Ramendri (Smt.) (2000) 3 SCC 180 : (2000 Cri LJ 1498) does not end right to maintenance under Section 125 of the Code. In Rohtash Singh, the question which came up for consideration before the Apex Court was whether a wife against whom a decree for divorce has been passed on the ground of desertion of the husband can claim maintenance under Section 125 of the Code 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 maintenance allowance. Their Lordships in para (10) of the judgment observed (Para 9A of Cri. L. J.):
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 the 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. 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."
14. Faced with this Mr. Sharma, learned counsel for the husband contends that the husband had taken a specific plea in his defence that the Courts at Dharamshala had no territorial jurisdiction to try the petition, as neither the husband nor the wife were living within the jurisdiction of the Courts at Dharamshala. His grievance is that this question though was answered in favour of the wife by the trial Court but the same was not considered by the learned Additional Sessions Judge.
15. So far this question is concerned, learned trial Magistrate found that even though the wife was serving at Maharishi Vidya Mandir School, Nadaun but that would not mean that she was not living at Sidhbari in Dharamshala. He took note of the fact that wife was serving temporarily in the aforesaid school and was living with her brother at Sidhbari. It appears, wife in her petition had taken a plea that she was living with her brother at Sidhbari to clothe the Court with territorial jurisdiction. It is in these circumstances that the petition was filed at Dharamshala.
16. Learned counsel for the wife submits that the wife was living with her brother at Sidhbari (Dharamshala) though was serving in the school at Naudon on part time basis, therefore, it cannot be said that she was residing at Naudon.
17. Mr. Sharma, learned counsel for the husband referred to Mst. Jagir Kaur v Jaswant Singh, AIR 1963 SC 1521 : (1963) 2 Cri LJ 413 and K. Mohan v. Balakanta Lakshmi, 1983 Cri LJ 1316.
18. In Jagir Kaur, the question raised before the Court was whether a Magistrate of Ludhiana has jurisdiction to entertain a petition, filed under Section 488(8) of the Old Code of Criminal Procedure. The proceedings under that Section could be initiated in any District where the husband resided or where he last resided with wife or where wife or children reside. Their Lordships observed that proceedings under that Section were in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy is ordinarily a helpless person. So the person should be liberally construed without doing any violence to the language. The ratio of this case is of no assistance to the husband.
19. A single Judge of the Madras High Court in K. Mohan took a view that where there are only vague allegations made by the wife about the residence in the territorial jurisdiction of the Court and the documents before the Court show that the correspondence had been served upon her at her address which was not within the local limits of jurisdiction then such Court would not have jurisdiction to entertain the petition under Section 125 of the Code. The facts of this case are distinguishable.
20. In the present case, it was clearly mentioned in the petition that the wife was residing with her brother at Sidhbari (Dharamshala). This is not a vague statement of address. There is nothing on record to show that her brother was not living at Sidhbari (Dharamshala).
21. The question in fact is covered by Darshan Kumari (Smt.) v. Surinder Kumar 1995 (4) SCC (Supp) 137. The Apex Court in this case held that temporary residence is sufficient to confer jurisdiction on the Magistrate at that place or of the District concerned. Assuming even if the wife was living with her brother at the relevant time, though temporarily, the Magistrate at Dharamshala will have jurisdiction to entertain the petition. The contention raised is without any foundation is rejected.
22. In result, the petition is allowed. The impugned judgment of the learned Additional Sessions Judge, (I), Kangra at Dharamshala is set aside and that of the trial Court is restored. Husband shall pay costs, assessed at Rs. 1,000/- to the respondent.