applicant/husband would submit that the non-
applicant/wife is practicing Advocate and is able to
maintain herself and therefore, she is not entitled
for maintenance. The fact remains that nonapplicant/
wife is junior Advocate and enrolled as an
Advocate, only in the year 2004 and she is unable to
maintain herself as such it cannot be held that she is
not entitled for maintenance.
HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL.
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CRIMINAL REVISION NO. 399/2008
Rishikesh Singh alias T.R. Singh
V
Kiran Gautam
Read original judgment here; click here
(Passed on 05/09/2014)
Citation; 2015 CRLJ126 Chhatis
1. In both these criminal revisions, common question
of law and fact is involved, as such, they are heard
analogously and stand disposed of by this common
order.
1
2. The essential facts required to be noticed for
judging the correctness of the impugned order are as
under:-
2.1 The non-applicant/wife filed an application
under Section 125 of the Code of Criminal
Procedure, 1973 (‘Cr.P.C.’ for brevity) stating
inter alia that she was married to the applicant.
She further pleaded that immediately after the
marriage, applicant and his family members
treated her with cruelty and demanded dowry. It
was further pleaded that she was forced to live
separately on account of valid and sufficient
cause, as such, she is living with her parents.
She further pleaded that a decree for divorce has
been granted on 25/02/2002 by the Third
Additional District Judge, Durg. It was also
pleaded that though, she is practicing Advocate
duly registered in the year 2004, but she is
unable to maintain herself, whereas, the
applicant is working on the post of Senior
Technician in Bhilai Steel Plant, getting
Rs.18,000/- per month and prayer was made for
grant of maintenance to the extent of Rs.5,000/-
per month.
2.2 The present applicant/husband filed his reply
admitting the fact of marriage with the non-
applicant and pleaded that the decree for divorce
on mutual consent under Section 13-B of Hindu
Marriage Act, 1955 has been granted by the
competent Court on 25/02/2002, and further
pleaded that the dowry case lodged under Section
498-A of the Indian Penal Code (“IPC” for
brevity) has also been closed and the nonapplicant
being an Advocate duly registered has
sufficient means to maintain herself, and as
such, application for maintenance deserves to be
rejected.
2.3 During the course of hearing, nonapplicant/
wife did not file any document,
whereas, the applicant/husband brought nine
documents i.e. Exhibit D/1 to Exhibit D/9 in
support of his case, out of which Exhibit D/1 is
a judgment and decree passed in Civil Suit No.
89-A/2000, granting decree on the basis of mutual
consent under Section 13-B of the Hindu Marriage
Act, 1955.
2.4 The Family Court, by its impugned order dated
03/05/2008, partly granted the application for
maintenance finding inter alia that the nonapplicant/
wife has valid and sufficient cause to
live separately and the decree for divorce
granted on the basis of mutual consent will not
disentitle the non-applicant/wife to get
maintenance from former husband i.e. applicant
and granted maintenance allowance of Rs.2,000/-
per month.
3. Questioning the legality and validity of the
impugned order of Family Court, applicant/husband has
filed criminal revision No. 399/2008 for setting aside
the order granting maintenance, whereas, nonapplicant/
wife has filed criminal revision No.
420/2008 seeking enhancement of the maintenance
allowance. Both the criminal revisions have been
clubbed together and heard analogously.
4. Mr. B.P. Sharma and Mr. Vivek Chopda, learned
counsel appearing on behalf of the applicant/husband-
Rishikesh Singh alias T.R. Singh, would submit that
once the decree for divorce is granted under Section
13-B of the Hindu Marriage Act, 1955 on the basis of
mutual consent, then by virtue of provision contained
in Section 125(4) of the Cr.P.C., as they are living
separately by mutual consent, the non-applicant/wife
is not entitled for maintenance. They would further
submit that the non-applicant/wife being the
Practicing Lawyer has a sufficient means to maintain
herself, therefore, the order granting maintenance
deserves to be set aside.
5. On the other hand, Mr. Awadh Tripathi and Mr.
Vivek Tripathi, learned counsel appearing on behalf of
the non-applicant/wife- Kiran Goutam, would support
the impugned order and submit that the Family Court
has rightly granted maintenance to the nonapplicant/
wife overruling the objections raised by the
applicant/husband. They would further submit that the
amount of maintenance deserves to be enhanced in view
of the income of the applicant/husband as said amount
of maintenance granted to her is not just and
reasonable.
6. I have heard learned counsel appearing for the
parties, considered their rival submissions and also
perused the record of the Family Court with utmost
circumspection.
7. The short question for consideration is whether
the decree for divorce granted on the basis of mutual
consent under Section 13-B of the Hindu Marriage Act,
1955 would dis-entitle the non-applicant/wife to get
maintenance in view of provision contained in subsection
(4) of Section 125 of the Cr.P.C.
8. In order to appreciate the point raised, it would
be profitable to quote Section 125(1)(a) and
Explanation (b) of the Cr.P.C., which runs thus:-
“125. Order for maintenance of wives, children
and parents.-(1) If any person having
sufficient means neglects or refuses to
maintain-
(a) his wife, unable to maintain herself,
or
(b) * * * *
(c) * * * *
(d) * * * *
Explanation.- For the purposes of this
Chapter,-
(a) * * * *
(b) "wife" includes a woman who has been
divorced by, or has obtained a divorce
from, her husband and has not remarried.”
9. Section 125 of the Cr.P.C. makes provision for
grant of maintenance to wife, children and parents.
Sub-section (1) of Section 125 of the Cr.P.C. inter
alia provides 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, 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.
10. In case of Rohtash Singh v. Smt. Ramendri and
other1, their Lordships of Supreme Court has held that
1 AIR 2000 SC 952
6
by virtue of explanation attached to sub-Section (1)
of Section 125 Cr.P.C., a woman divorced by her
husband on account of a decree passed by the Family
Court under the Hindu Marriage Act, 1955 continues to
enjoy the status of a wife for the limited purpose of
claiming maintenance from her ex-husband and held as
under:-
“9A. 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 if 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
(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.
10. 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,
can not be accepted as a woman has two
distinct rights for maintenance. As a wife,
7
she is entitled to maintenance unless she
suffers form 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 can not 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.”
11. Thus by virtue of Explanation (b) of Section
125(1) of the Cr.P.C., divorced wife is entitled for
maintenance, if she is unable to maintain herself.
12. Section 125(4) of the Cr.P.C. provides as under:-
“125(4) No wife shall be entitled to receive
an [allowance for the maintenance or the
interim maintenance and expenses of
proceeding, as the case may be,] 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.”
13. A careful and plain reading of the sub-section
(4) of Section 125 of the Cr.P.C. would show that in
order to invoke, this sub-section, the marriage must
be subsisting on the date of questioning the wife's
entitlement to get maintenance as question of living
separately by mutual consent would arise only when
their marriage is subsisting and once the marital tie
is dissolved by valid decree of divorce, the
relationship comes to an end and they are entitled to
live separately as per decree of divorce, and question
of living separately by mutual consent does not arise.
8
14. In case of Vanamala (Smt.) v. H.M. Ranganatha
Bhatta2, the provision contained in Section 125 of the
Cr.P.C. came to be considered and their Lordships of
the Supreme Court has held that the divorced wife by
mutual consent who has not remarried is entitled for
maintenance and cannot be debarred by invoking Section
125(4) of the Cr.P.C. and observed as under:-
“3.........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 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 woman 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.”
15. Likewise, in case of Gurmit Kaur v. Surjit Singh
alias Jeet Singh3, the Supreme Court has clearly held
that the expression ‘they are living separately by
mutual consent’ used in Section 125(4) of the Cr.P.C.
would be attracted during the subsistence of marriage
by observing as under:-
“6. The concept of living separately by
mutual consent arises so long as the marriage
2 (1995) 5 SCC 299
3 (1996) 1 SCC 39
9
subsists and the parties agree to live
separately by consent. In other words, during
the subsistence of the marriage, if the
parties agree to live separately by mutual
consent, no party is entitled to lay and claim
for maintenance from the other party.
7. In view of the divorce agreement referred
to hereinabove, the marital relations have
come to a terminus. By virtue thereof, the
respondent had already contracted the second
marriage. In other words, the first marriage
has been put to an end. The appellant thereby
became entitled to claim maintenance and will
continue to do so, so long as she remains
unmarried and she is unable to maintain
herself.”
16. Testing the present factual matrix on the anvil
of aforesaid enunciation of law it would appear that
the non-applicant was legally wedded wife of the
applicant prior to decree of divorce on 25/02/2002. It
is also not in dispute that the non-applicant has not
remarried after passing the decree of divorce under
Section 13-B of the Hindu Marriage Act, 1955. Thus,
non-applicant/wife being divorced wife of the
applicant-Rishikesh Singh alias T.R. Singh is entitled
for maintenance under Section 125(1) read with
Explanation (b) of the Cr.P.C. till she is not
remarried and Section 125(4) of the Cr.P.C. would not
be attracted as stated above. Thus, the Family Court
is absolutely justified in granting maintenance to the
non-applicant/wife.
17. Mr. Sharma, learned counsel for the
applicant/husband would submit that the non-
10
applicant/wife is practicing Advocate and is able to
maintain herself and therefore, she is not entitled
for maintenance. The fact remains that nonapplicant/
wife is junior Advocate and enrolled as an
Advocate, only in the year 2004 and she is unable to
maintain herself as such it cannot be held that she is
not entitled for maintenance.
18. Now, coming to the quantum of maintenance, which
the wife/non-applicant is entitled to; she has been
granted maintenance to the extent of Rs.2,000/- per
month. The fact remains that the applicant/husband is
working as Senior Technician in Bhilai Steel Plant and
getting Rs.18,000/- per month and amount of
maintenance granted to the wife/non-applicant
Rs.2,000/- per month cannot be said to be fair and
reasonable amount of maintenance to a wife, who is an
Advocate and unable to maintain herself. Taking into
consideration rise in the cost of living, price index
and basic needs of human being i.e. food, shelter
etc., it would be appropriate to enhance the
maintenance amount from Rs.2,000/- per month to
Rs.3,000/- per month and further considering the facts
and circumstances of the case the non-applicant/wife
would be entitled the enhanced amount of maintenance
w.e.f. 01/01/2011. Arrears of maintenance amount be
paid to the non-applicant/wife within a period of 45
days from today.
19. Consequently, the criminal revision No. 399/2008
filed by the husband fails and is hereby dismissed,
whereas, Criminal Revision No. 420/2008 filed by the
wife is allowed to the extent indicated herein above.
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