Sunday, 29 September 2019

Whether wife who has obtained divorce on ground of desertion is entitled to get maintenance?

Thereafter, in Rohtash Singh Vs. Ramendri & Ors . (2000) 3 SCC 180, this Court took a similar view:
"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."
This view, which was taken by two-Judge Benches has
been confirmed in Manoj Kumar Vs. Champa Devi (2018) 12 SCC 748 by a three
judge bench, though, no specific reasons have been
recorded in the judgment. Mr. Debal Banerjee urged that
the matter requires reconsideration. We are not in

agreement with him for two reasons. Firstly, the view
taken in the first two judgments has been confirmed by a
three-judges Bench and, therefore, we cannot refer it to
a larger Bench.
Even otherwise, this view has been consistently
taken by this Court and the said view is in line with
both the letter and spirit of the Cr.P.C.
No doubt, as urged by Mr. Debal Banerjee,
explanation II to Section 125 of the Cr.P.C. by deeming
fiction includes a divorced woman to be a wife and,
therefore, a woman who has been divorced by her husband
can still claim maintenance under Section 125 of the
Cr.P.C. The question is how we should read the provisions
of sub-section (4) in this regard, especially when we
deal with those women, against whom a decree for divorce
has been obtained on the ground that they have deserted
their husband. Once the relationship of marriage comes to
an end, the woman obviously is not under any obligation
to live with her former husband. The deeming fiction of
the divorced wife being treated as a wife can only be
read for the limited purpose for grant of maintenance and
the deeming fiction cannot be stretched to the illogical
extent that the divorced wife is under a compulsion to
live with the ex-husband. The husband cannot urge that he
can divorce his wife on the ground that she has deserted
him and then deny maintenance which should otherwise be
payable to her on the ground that even after divorce she

is not willing to live with him. Therefore, we find no
merit in the contention of Mr. Debal Banerjee.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).232-233 OF 2015

DR. SWAPAN KUMAR BANERJEE Vs  THE STATE OF WEST BENGAL 

DEEPAK GUPTA, J.
Dated:September 19, 2019.

The short question raised in these appeals is
whether a wife, who has been divorced by the husband, on
the ground that the wife has deserted him, is entitled to
claim maintenance under Section 125 of the Code of
Criminal Procedure, 1973 (Cr.P.C.).
We may refer to the relevant portion of Section 125
of the Code of Criminal Procedure:-
"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
x x x x x x x x x
x x x x x x x x x
x x x x x x x x x

Explanation.– For the purposes of this
Chapter,-
x x x x x x x x x
(b) "wife" includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried.
(2) x x x x x x x x x
(3) x x x x x x x x x
(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.
x x x x x x x x x”
It is the contention of Mr. Debal Banerjee that in
terms of sub-section (4), no wife, who has deserted her
husband can claim maintenance under Section 125 of the
Cr.P.C. His further submission is that since in terms of
the explanation wife includes a divorced woman,
therefore, even a wife who has been divorced on the
ground of desertion would not be entitled to maintenance
in view of sub-section (4). Mr. Debal Banerjee has very
candidly placed before us three judgments of this Court
which take a view contrary to the one being canvassed by
Mr. Banerjee before us.
In Vanamala Vs. H.M. Ranganatha Bhatt a1, this Court
1. (1995) 5 SCC 299

dealt with a similar issue and held as follows:
"3. Section 125 of the Code makes provision
for the grant of maintenance to wives, children
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 (i) 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 had 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:
125.(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 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, subsection
(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."
Thereafter, in Rohtash Singh Vs. Ramendri & Ors . (2000) 3 SCC 180, this Court took a similar view:
"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."
This view, which was taken by two-Judge Benches has
been confirmed in Manoj Kumar Vs. Champa Devi (2018) 12 SCC 748 by a three
judge bench, though, no specific reasons have been
recorded in the judgment. Mr. Debal Banerjee urged that
the matter requires reconsideration. We are not in

agreement with him for two reasons. Firstly, the view
taken in the first two judgments has been confirmed by a
three-judges Bench and, therefore, we cannot refer it to
a larger Bench.
Even otherwise, this view has been consistently
taken by this Court and the said view is in line with
both the letter and spirit of the Cr.P.C.
No doubt, as urged by Mr. Debal Banerjee,
explanation II to Section 125 of the Cr.P.C. by deeming
fiction includes a divorced woman to be a wife and,
therefore, a woman who has been divorced by her husband
can still claim maintenance under Section 125 of the
Cr.P.C. The question is how we should read the provisions
of sub-section (4) in this regard, especially when we
deal with those women, against whom a decree for divorce
has been obtained on the ground that they have deserted
their husband. Once the relationship of marriage comes to
an end, the woman obviously is not under any obligation
to live with her former husband. The deeming fiction of
the divorced wife being treated as a wife can only be
read for the limited purpose for grant of maintenance and
the deeming fiction cannot be stretched to the illogical
extent that the divorced wife is under a compulsion to
live with the ex-husband. The husband cannot urge that he
can divorce his wife on the ground that she has deserted
him and then deny maintenance which should otherwise be
payable to her on the ground that even after divorce she

is not willing to live with him. Therefore, we find no
merit in the contention of Mr. Debal Banerjee.
Coming to the merits of the case, the matrimonial
dispute started with the husband filing a petition of
judicial separation in 1992, though, it was alleged that
since 1987 the wife had deserted him. In 1997 a petition
for divorce was filed and the divorce was granted in
2000. During this period from 1987 to 2000 when the wife
was living separately from her husband she did not file
any petition for grant of maintenance. Even during the
divorce proceedings though an application under Section
24 of the Hindu Marriage Act, 1955 was filed but it seems
that the same was either dismissed for non-prosecution or
was not pressed. It was not decided on merits in any
event.
After the divorce was granted, according to the
appellant he got remarried after a year and it was only
thereafter that the wife filed a petition for grant of
maintenance. That, according to us, will make no
difference because it is for the wife to decide when she
wants to file a petition for maintenance. She may have
felt comfortable with whatever earnings she had upto that
time or may be she did not want to precipitate matters
till she was contesting the divorce petition by filing a
claim for maintenance. Whatever be the reason, the mere
fact that the wife did not file a petition for grant of
maintenance during the pendency of the matrimonial

proceedings, is no ground to hold that she is not
entitled to file such a petition later on.
The next issue raised was that the wife being a
qualified architect from a reputed university i.e.
Jadavpur University, Calcutta would be presumed to have
sufficient income. It is pertinent to mention that as far
as the husband is concerned, his income through taxable
returns has been brought on record which shows that he
was earning a substantial amount of Rs.13,16,585/- per
year and on that basis Rs.10,000/- per month has been
awarded as monthly maintenance to the wife. No evidence
has been led to show what is the income of the wife or
where the wife is working. It was for the husband to lead
such evidence. In the absence of any such evidence no
presumption can be raised that the wife is earning
sufficient amount to support herself.
In this view of the matter, we find no merit in the
appeals, which are accordingly dismissed.
Pending application(s), if any, stands disposed of.
...................J.
(DEEPAK GUPTA)
...................J.
(ANIRUDDHA BOSE)
New Delhi;
September 19, 2019

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