Sunday, 11 November 2012

Whether mutually divorced wife is entitled to get maintenance?

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, sub-section (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.
     Counsel for the appellant also pointed out that some of
the High Courts had taken a similar view. Reference was made
to the case of  Kongini Balan Vs. M. Visalakshy, 1986 (92)
Criminal Law  Journal 697 (Kerala), wherein it was held that
a wife who obtains  a divorce by mutual  consent cannot be
denied maintenance by virtue of Section 125 (4) of the Code.
Similar view  was taken in Krishan Kumar Vs. Kiran, 1 (1991)
DMC 248  (Madhya Pradesh)  wherein  it was  held  that  the
expression 'living  separately by  mutual consent'  does not
cover cases  of those  living separately due to divorce. The
same view  was expressed  in M.  Ramakrishna  Reddy  Vs.  T.
Jayamma and Another, 1992 (98) Criminal Law Journal 1368. In
that case  divorce was obtained by  mutual consent  on  the
ground of  incompatibility  and  thereafter  the  woman  was
living separately,  it was  held  that this  could  not  be
construed to be an agreement for living separately by mutual
consent and  hence the woman was entitled to maintenance. We
think these  decisions are  in conformity  with  the  plain
language of  sub-section (4)  of section  125 which  we have
construed hereinbefore. 

SUPREME COURT OF INDIA


SMT. VANAMALA Vs. SHRI H.M.RANGANATHA BHATTA

DATE OF JUDGMENT27/07/1995
citations: 1995 SCC (5) 299, JT 1995 (5) 670
BENCH:
AHMADI A.M. (CJ)
SEN, S.C. (J)



    The facts in brief  reveal that  the appellant married
the respondent some time in 1970 and then gave birth to two
issues from  the said  wedlock. Unfortunately, her  married
life was  not smooth  and in 1980 divorce by mutual consent,
was obtained  under Section  13-B of the Hindu Marriage Act.
While granting divorce by mutual consent, no order in regard
to maintenance or alimony was made. The decree is silent on
that  count.   Few  years   later  the appellant  filed  an
application under  section  125 of  the  Code (hereinafter
called 'the  Code') seeking  maintenace from the respondent.
The learned  Magistrate dismissed  the application  holding
that a divorcee woman was not entitled to maintenance once
it is  found that the divorce was by mutual consent. Against
that order the appellant filed a Revision Application to the
Sessions Court. The learned  Sessions Judge  came  to the

conclusion that the appellant was entitled  to maintenance
notwithstanding the  divorce by mutual consent and remanded
the matter to the Trial Court for determining the quantum of
maintenance. Against  this order  of  the  learned  Sessions
Judge, the  respondent preferred  a  Revision Application
before the  High Court and the High Court  by the impugned
judgment and  order dated  19.8.1991 set  aside the order of
the learned  Sessions judge  upholding the view taken by the
learned Magistrate  and dismissed  the application.  It  is
against that order  that  the  present  appeal  has been
preferred.
     Section 125  of the  Code makes provision for the grant
of maintenance to wives,  chaildren and parents.Sub-section
(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 sub-section defines  the expression
'wife' to  include a  woman who has been divorced by, or has
obtained a  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  13-B 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 sub-section (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 sub-section 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, sub-section (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.
     Counsel for the appellant also pointed out that some of
the High Courts had taken a similar view. Reference was made
to the case of Kongini Balan Vs. M. Visalakshy, 1986 (92)
Criminal Law  Journal 697 (Kerala), wherein it was held that
a wife who obtains  a divorce by mutual  consent cannot be
denied maintenance by virtue of Section 125 (4) of the Code.
Similar view  was taken in Krishan Kumar Vs. Kiran, 1 (1991)
DMC 248 (Madhya Pradesh)  wherein  it was  held  that the
expression 'living  separately by  mutual consent'  does not
cover cases  of those  living separately due to divorce. The
same view  was expressed  in M. Ramakrishna  Reddy  Vs.  T.
Jayamma and Another, 1992 (98) Criminal Law Journal 1368. In
that case  divorce was obtained by  mutual consent  on the
ground of  incompatibility  and thereafter  the  woman was
living separately,  it was  held  that this  could  not  be
construed to be an agreement for living separately by mutual
consent and  hence the woman was entitled to maintenance. We
think these  decisions are  in conformity  with  the  plain
language of  sub-section (4)  of section  125 which  we have
construed hereinbefore. The contention raised by the counsel
for the husband is, therefore, unsustainable. The High Court
was, therefore, clearly wrong in reversing the order passed
by the Sessions Judge. In the result, this appeal succeeds,
The impugned order of the High Court dated 19th August, 1991
is set aside. The order of the learned Sessions Judge dated
5th September,1988  is restored.  The  respondent  will pay
Rs.5,000/- by way of cost.

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