Supreme Court: Divorced wife can not be denied maintenance U/S 125 even if divorce was on ground of desertion

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.).

 No doubt, as urged by Mr. Debal Banerjee, explanation II to Section 125 of the Code of Criminal Procedure 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 Code of Criminal Procedure 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 232-233 of 2015

Decided On: 19.09.2019

 Swapan Kumar Banerjee  Vs.  The State of West Bengal 

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: AIR 2019 SC 4748

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Whether Divorced wife is entitled to get maintenance, whatever may be the reason for divorce?

The phraseology used in Explanation (b) to Section 125(1) of the Code would not
admit of creating classes of divorced wives. A divorced wife is a
divorced wife, whatever may be the reasons for divorce and
whatever may be the procedure adopted or forum chosen. If wife
divorced on the ground of desertion, who has a better reason to be
disentitled, because a husband cannot be said to have refused or
neglected to maintain her, is held entitled to maintenance as
divorced wife, since she herself deprived husband of the chance to
maintain her, wives divorced for other reasons would certainly be
entitled to be maintained

Bombay High Court

Smt. Gita W/O Chandrashekhar ... vs Sushree Geeta D/O Ramnath Sharma on 20 January, 2009

Bench: R. C. Chavan

Dated : 20-1-2009

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