Report No. 48
61. Wife divorced extra-judicially.-
The first relates to the wife divorced extra-judicially.
At present, section 488 is confined to a wife or legitimate or illegitimate child unable to maintain herself or itself. A wife who has been divorced cannot proceed under this section. Where she is divorced extra-judicially, this position causes hardship. Such women mostly become destitutes and their grievance needs immediate redress. We are of the view that where the divorce is effected extra-judicially, such right should be available to the wife until re-marriage, in order to prevent vagrancy and other evils which section 488 is designed to check. We have included extra-judicial divorce, because in such cases the divorced woman is unable to maintain herself, while, in case of a judicial divorce, alimony is provided for by an order of the Court.
It is not necessary to create a specific exception for cases where the divorce, though granted by the husband, was necessitated by the wife's fault. If, for example,-the ex-wife is staying with a paramour, the court will have a discretion to refuse maintenance1.
We should also point out here that if our recommendation to extend section 488 to a wife divorced extra-judicially is accepted, it will be necessary to make a change in one clause of the Bill2. Clause 128(5) should be revised to read:
"128(5). On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband 3or that they are living separately by mutual consent, the Magistrate shall cancel the order."
1. See (a) Clause 128(4), Cr. PC Bill.
(b) Section 488(4), Cr. P.C.
2. Clause 128(5), Cr. P.C. Bill, 1970.
3. The words "or that she has been lawfully divorced by her husband otherwise than by a decree or order of a Court having jurisdiction in the matter" newly inserted by the Cr. P.C. Bill, 1970, should be deleted.