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
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.
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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