Vs. Shri H.M. Ranganatha Bhatta  INSC 342 (27 July 1995)
A.M. (Cj) Ahmadi A.M. (Cj) Sen, S.C. (J) Ahmadi, Cji
1995 SCC (5) 299 JT 1995 (5) 670 1995 SCALE (4)660
27TH DAY OF JULY, 1995 PRESENT:
the Chief Justice Hon'ble the Mr. Justice S.C.Sen Mr. S. N. Bhat, Adv. for the
Appellant Mr. K. R. Nagaraja, Adv. for the Respondent.
following Judgment of the Court was delivered:
V. Shri H.M. Ranganatha Bhatta
facts in brief reveal that the appellant married the respondent some time in
1970 and then gave birth to two issues from the said wedlock. Unfortunately,
her married life was not smooth and in 1980 divorce by mutual consent, was
obtained under Section 13-B of the Hindu Marriage Act.
granting divorce by mutual consent, no order in regard to maintenance or
alimony was made. The decree is silent on that count. Few years later the
appellant filed an application under section 125 of the Code (hereinafter
called 'the Code') seeking maintenace from the respondent.
learned Magistrate dismissed the application holding that a divorcee woman was
not entitled to maintenance once it is found that the divorce was by mutual
consent. Against that order the appellant filed a Revision Application to the
Sessions Court. The learned Sessions Judge came to the conclusion that the
appellant was entitled to maintenance notwithstanding the divorce by mutual
consent and remanded the matter to the Trial Court for determining the quantum
of maintenance. Against this order of the learned Sessions Judge, the
respondent preferred a Revision Application before the High Court and the High
Court by the impugned judgment and order dated 19.8.1991 set aside the order of
the learned Sessions judge upholding the view taken by the learned Magistrate
and dismissed the application. It is against that order that the present appeal
has been preferred.
125 of the Code makes provision for the grant of maintenance to wives, chaildren
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 (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.
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.
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 has 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:- (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.
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 women 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
for the appellant also pointed out that some of the High Courts had taken a
similar view. Reference was made Criminal Law Journal 697 (Kerala), wherein it
was held that a wife who obtains a divorce by mutual consent cannot be denied
maintenance by virtue of Section 125 (4) of the Code.
248 (Madhya Pradesh) wherein it was held that the expression 'living separately
by mutual consent' does not cover cases of those living separately due to
divorce. The Jayamma and Another, 1992 (98) Criminal Law Journal 1368. In that
case divorce was obtained by mutual consent on the ground of incompatibility
and thereafter the woman was living separately, it was held that this could not
be construed to be an agreement for living separately by mutual consent and
hence the woman was entitled to maintenance. We think these decisions are in
conformity with the plain language of sub-section (4) of section 125 which we have
construed hereinbefore. The contention raised by the counsel for the husband
is, therefore, unsustainable. The High Court was, therefore, clearly wrong in
reversing the order passed by the Sessions Judge. In the result, this appeal succeeds,
The impugned order of the High Court dated 19th August, 1991 is set aside. The order of the
learned Sessions Judge dated 5th September,1988 is restored. The respondent will pay Rs.5,000/- by way of cost.