Saturday, 28 December 2019

Bombay HC: Wife is not entitled to maintenance if divorce is on ground of adultery

 Learned counsel for the Petitioner-wife would urge that,
even if the Petitioner is a divorcee, having regard to the provisions of
Sub-section (4) of Section 125 of the Code of Criminal Procedure,
1973 she is entitled for maintenance as she continues, to be a woman,
within the meaning of Sub-section (4) of Section 125 of the Act.
6. He would draw support from the Judgments of the Apex
Court in VANAMALA VS H.M.RANGANATHA BHATTA reported in 1995
DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000
DGLS (SC) 450 so as to support his aforesaid contentions. The sum
and substance of the submission is even if there is a decree of divorce
passed on the allegation of adultery, still bar under Sub-section (4) of
Section 125 of the Act, will not be attracted, as even after divorce, she
ceases to have the status of a wife but, she continues to be a woman.
 In the aforesaid background, both these Judgments will be
hardly of any assistance to the Petitioner. Considering the expressed
embargo on the right of the Petitioner, to claim maintenance
particularly, divorce was ordered on 27.4.2000 based on the allegation
of adultery, the Court below has rightly held that the Petitioner-wife is
not entitled for maintenance.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2547 OF 2016

Sanjivani Ramchandra Kondalkar vs.  Ramchandra Bhimrao Kondalkar & anr 

CORAM : NITIN W.SAMBRE,J
DATED : 18th DECEMBER, 2019


Heard.
1. Both these Petitions are filed by the wife, questioning the
order of denial of maintenance.
The un-disputed facts would be noted as under :

2. The parties to the Petition married on 6.5.1980 whereas
the Petitioner was divorced by the Respondent in a Hindu Marriage
Petition No.252 of 1996 preferred under section 13 of the Hindu
Marriage Act, 1956 on 27.4.2000 on the ground of adultery. I am
informed that the aforesaid Judgment was subjected to challenge in an
Appeal however, the Appeal failed as the delay was not condoned.
3. In the aforesaid background, the Petitioner-wife moved an
application for enhancement of maintenance from Rs.150/- and Rs.25/-
to the son which was allowed by the impugned order dated 12.8.2010.
The learned Magistrate enhanced the maintainance amount to Rs.500/-
and Rs.400/- to the wife and son respectively, whereas, the Application
for cancellation of the maintenance moved by the husband, pursuant to
the provisions of Sub-section (4) of Section 125 of the Code of Criminal
Procedure, 1973 came to be rejected. As such, the husband preferred a
Criminal Revision Application No.204 of 2010. The aforesaid Revision
came to be allowed vide the impugned judgment dated 13.7.2015 by
the learned Additional Sessions Judge, Sangli. As such these Petitions.
4. As far as Writ Petition No.2547 of 2016 is concerned, the
same is preferred by the Petitioner-wife questioning the Judgment dated
13.7.2015 wherein the Judgment dated 12.8.2010 passed by the learned

Magistrate, rejecting the application for cancellation of maintenance
amount, came to be allowed.
5. Learned counsel for the Petitioner-wife would urge that,
even if the Petitioner is a divorcee, having regard to the provisions of
Sub-section (4) of Section 125 of the Code of Criminal Procedure,
1973 she is entitled for maintenance as she continues, to be a woman,
within the meaning of Sub-section (4) of Section 125 of the Act.
6. He would draw support from the Judgments of the Apex
Court in VANAMALA VS H.M.RANGANATHA BHATTA reported in 1995
DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000
DGLS (SC) 450 so as to support his aforesaid contentions. The sum
and substance of the submission is even if there is a decree of divorce
passed on the allegation of adultery, still bar under Sub-section (4) of
Section 125 of the Act, will not be attracted, as even after divorce, she
ceases to have the status of a wife but, she continues to be a woman.
7. Per contra the aforesaid submissions, learned counsel for
the Respondent submits that the divorce proceedings initiated by the
Respondent-husband came to be allowed, as the allegation of adultery
was proved against the Petitioner-wife. According to him, in view of

the statutory embargo under Sub-section (4) of Section 125 of the Act,
the Court below has rightly held that the Petitioner is not entitled for
maintenance.
8. Considered rival submissions.
9. Learned counsel for the Petitioner has tried to rely on the
judgments of the Apex Court in VANAMALA and ROHTAS SINGH supra
so as to claim the status of the Petitioner-wife as that of a woman
continues, inspite of the divorce ordered on 27.4.2000. The fact
remains that, there is an expressed embargo on the right of a woman
to claim maintenance, pursuant to the provisions under Sub-section (4)
of section 125 of the Act. If the allegation of adultery are proved
against such a women or inspite of the husband being ready to
maintain her and she refuses to cohabit the women/wife can be refused
payment of maintenance.
10. As far as factual matrix of the aforesaid case, namely
VANAMALA and ROHTASH SINGH is concerned, both these cases are
based on identifying and recognizing the right of a woman who was
divorced not on the ground of proved adultery.

11. In the aforesaid background, both these Judgments will be
hardly of any assistance to the Petitioner. Considering the expressed
embargo on the right of the Petitioner, to claim maintenance
particularly, divorce was ordered on 27.4.2000 based on the allegation
of adultery, the Court below has rightly held that the Petitioner-wife is
not entitled for maintenance.
12. In the aforesaid background, no case for interference is
made out. Both these Petitions lack merit.
13. Dismissed.
[ NITIN W.SAMBRE, J ]

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