Madhu And Another vs State Of Delhi And Another
1999 Latest Caselaw 1011 Del

ORDER

K.S. Gupta, J.

1. This petition under Section 482 Cr. P.C. has been filed for setting aside the order dated 7th December, 1998 passed in Crl. Rev.148/96 by an Additional Sessions Judge and to restore the order of Metropolitan Magistrate dated 21st April, 1994 by which the respondent No. 2 was directed to pay maintenance at the rate of Rs.400/- per month to petitioner No.1.

2. Petitioner No.1 is the mother of petitioner No.2 and both of them jointly filed petitioner under Section 125 Cr.P.C. on 31st May 1989, inter alia, alleging that petitioner No.1 was married to respondent No. 2 on 23rd December 1985. Respondent No.2 was previously married to Smt. Shashi who died leaving behind two children, namely, Jaya and Avdesh. As a result of co-habitation the petitioner No.1 became pregnant from respondent No. 2 and she gave birth to a female child on 29th October 1986 at her parents house. It is further alleged that petitioner No.1 was compelled to leave the matrimonial home on 24th April 1986 by respondent No. 2. Respondent No. 2 filed a petition under Section 9 of Hindu Marriage Act which was got dis-

missed as withdrawn by him on 2nd April 1987. Thereafter he has filed petition for divorce against petitioner No.1. Maintenance at the rate of Rs. 500/- per month each has been claimed by the petitioners.

3. On 1st June, 1989 petitioners also filed application for grant of interim maintenance at the said rate and by the order dated 21st April,1994 petitioner No.1 was allowed interim maintenance at the rate of Rs. 400/- per month while petitioner No. 2 at the rate of Rs. 250/- per month with effect from 1st June 1989, the date of the filing of the application by a Metropolitan Magistrate. Aggrieved by that order respondent No. 2 filed the said Criminal revision and by the order under challenge an Additional Sessions Judge set aside the part of the said order allowing interim maintenance to petitioner No.1 at the said rate.

4. I have heard Ms. Meenakshi Singh for the petitioners and Sh. J.C. Mahindroo for respondent No. 2 and have also been taken through the record.

5. Reason for disallowing interim maintenance to petitioner No.1 as disclosed in Para No.10 of the order dated 7th December, 1998 is that she had refused to live with respondent No. 2 without any sufficient cause within the meaning of sub section (4) of Section 125 Cr.P.C. In reaching the conclusion that petitioner No.1 refused to live with respondent No. 2 without any sufficient cause the Additional Sessions Judge took note of the finding recorded in the judgment dated 7th March 1991 in HMA No.243/88 filed by respondent No. 2 against petitioner No.1. This judgment notices that petitioner No.1 deserted respondent No. 2 on 24th April 1986 continuously for a period of more than two years immediately before the filing of the divorce petition on 6th July, 1988 and that petition for restoration of conjugal rights filed earlier was got dismissed as withdrawn on 2nd April, 1987 by respondent No. 2 as petitioner No. 1 declined to return to the matrimonial home despite efforts made by the court as also respondent No. 2.

6. Omitting the immaterial portion Section 125 Cr.P.C. which is relevant provides as under:-

125.(1) If any person having sufficient means neglects or refuses to maintain-(a) his wife, unable to maintain herself, or

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 or such child, father or mother, at such monthly rate not exceeding five hundred rupees 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.

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.

2)............................................

3)...........................................

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......."

7. By the extended definition of "wife" under Explanation (b) to Section 125(1) there are two categories of wives, those who are continuing as wives and those who are not, but not remarried. Provision contained in said sub section (4) of Section 125 Cr.P.C. vis-a-vis both these categories came to be considered in the decision in Velukutty Vs. Prasannakumari, 1985 CRI. L.J. 1558 by the Kerala High Court and in Para No. 8 of the report it was held:-

"As already stated by me I am not considering the ground of adultery occurring in sub-sections (4) and (5) of Section 125 because there is no such case. The other ingredients of subsections (4) and (5) and the second proviso to sub-section (3) of Section 125 are applicable to `wife' mentioned therein only if her marriage is subsisting and not in the case of a `wife' as defined in Explanation (b) to Section 125(1).

8. I agree with the view expressed in Velukutty's case (supra). Indisputably marriage between petitioner No.1 and respondent No. 2 stood disolved by a decree of divorce on 7th March, 1991 in HMA No. 243/88 on the ground of desertion. In my opinion, even if the findings recorded in the judgment dated 7th March, 1991 are taken into consideration for prima facie reaching the conclusion that petitioner No.1 without any sufficient reason refused to live with respondent No. 2 within the meaning of said sub section (4) of Section 125 as has been done by the Additional Sessions Judge that refusal can be upto the stage said judgment was passed and not thereafter. The claim of petitioner No.1 for interim maintenance from 8th March 1991 onwards, therefore, has to be decided with reference to her new status as divorced wife. In the decision in Darshan Pal Vs. Smt. Darshna, 1986 CRI.L.J. 48 it was held by Punjab & Haryana High Court that a divorced wife can claim maintenance under Section 125 Cr.P.C. whatever be the reason for passing of the decree of divorce and her claim to maintenance can only be negatived if she has received some compensation of maintenance from her husband. Divorced wife is under no obligation to live under the roof of exhusband and equally ex-husband cannot forestall the claim of maintenance by making suggestion that he was/is willing to keep her. No specific words of neglect or refusal need in such a case be pleaded or proved. in Sridhar Rao Vs. Kamakshamma and Another, 1983 CRI L.J. NOC 117(AP) Andhra Pradesh High Court also held that maintenance could be granted to a divorced wife notwithstanding that the marriage was dissolved due to her fault. Decisions in Sangita Arun Mhasvade Vs. Arun ABA Mhasvade and Another, II (1984) DMC 450 and Raghbir Singh Vs. Krishna, I(1983) DMC 150 relied on behalf of respondent No. 2 are of no help in the matter. Thus, the petitioner No.1, a destitute could not have been legally denied interim maintenance taking note of the provisions of sub section (4) of section 125 Cr.P.C. in terms of the aforesaid order dated 17th December, 1998 after 7th March, 1991. Evidently, there has been miscarriage of justice which needs to be corrected in exercise of inherent power under Section 482 Cr.P.C. by this court.

9. For the foregoing discussion, aforesaid order dated 7th December, 1998 is set aside and the Magistrate's order dated 21st April, 1994 is restored with the modification that petitioner No.1 is entitled to interim maintenance with effect from 8th March, 1991 instead of 1st June, 1989.