Court:PUNJAB AND HARYANA HIGH COURT
Bench: JUSTICE DELHI HIGH COURT
KRISHAN GOPAL Vs. USHA RANI On 4 December 1981
Code of Criminal Procedure, S. 125(1) Explanation (b) and Hindu Marriage Act, Ss. 11, 12, 13 and 25 — Explanation to S. 125(1), Cr.P.C. applies only to divorced wife and not whose marriage is annulled.
By this petition filed under section 482 of the Code of Criminal Procedure, Krishan Gopal, petitioner herein, is challenging the legality of the order passed on 31st July, 1981, by a Metropolitan Magistrate, Delhi, whereby the learned Magistrate has held that the petition filed by the wife, Smt. Usha Rani, under section 125 of the Code of Criminal Procedure (herein called ‘‘the Code”) is maintainable. While dismissing the preliminary objection on behalf of the husband-respondent it has been held that in spite of the fact that the marriage between the parties has been declared a nullity under Section 12 of the Hindu Marriage Act (herein called ‘the Act’), Usha Rani continues to have the status of a wife and as such she is entitled to ask for maintenance.
2. The case of the husband is that the marriage between the parties could not be consummated as his wife was incapable of sexual intercourse. According to him she is a born eunch. While declaring the marriage to be a nullity it has been found by the Court of District Judge, Ferozepur, vide judgment passed on 7th October, 1980, that Usha Rani in spite of having undergone a vaginal operation, was impotent.
3. Mr. Kalia, counsel for the petitioner, contends that in case of aunulment of the marriage on the ground of impotency of the wife under Section 12 of the Act, the wife cannot claim to a divorced wife as envisaged by explanation (B) to Section 135(1) of the Code and, therefore her application for maintenance under the provisions of Section 125 of the Code is not maintainable. The said Explanation reads as follows :
“Explanation.—For the purposes of this Chapter.
(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married”.
The argument is that according to the said Explanation only those Hindu women, who have been divorced by, or have obtained divorce from their husband, under Section 13 of the Act, are entitled to an order of maintenance under Section 125 of the Code.
4. The contention of the wife, however, is that by decree of annulment under Section 12 of the Act her status as a wife does not terminate and, therefore, till she re-marries she is to be considered a divorced wife for the purposes of Section 125 of the Code. In support of this contention the respondent wife relies on the provisions of Section 125 of the Act, The submission is that permanent alimony could have been granted to her under Section 25 of the Act by the District Judge at the time of passing of the decree of annulment or at any time subsequent thereto meaning thereby that in spite of the annulment of the marriage her status as a wife continues. As she is entitled to receive maintenance under the personal law she must be presumed to be entitled to that maintenance under the provisions of Section 125 of the Code. Reference is made to a decision of the Punjab & Haryana High Court in Gurcharan Kaur alias Charno v. Sher Singh, I (1981) DMC 83 wherein it has been held by the said Court that even after annulment of the marriage, the wife continues to have that status and is therefore entitled to maintenance under Section 25 of the Act.
5. There appears to be difference of opinion in the High Courts on the question whether after passing a decree of nullity of marriage, the parties to the marriage answer the description of wife and husband and whether such a wife has locus standi to move an application for maintenance under Section 25 of the Act.
6. Be that as it may I am not called upon to answer that question in these proceedings.
7. The question before me is whether such a wife is covered by Explanation (b) to Section 125(1) of the Code ?
8. To appreciate the contention of the wife that it is the statutory liability of the husband to maintain her until she re-marries as her status continues to be that of a wife, relevant provisions of the Hindu Marriage Act regarding dissolution of marriage may be noticed.
9. Section 11 deals with cases where the marriage is null and void. It provides that a marriage which is bigamous or which contravenes the rules relating to relationship within the prescribed degrees of Spindas relationship is null and void from the very beginning. Section 12 deals with voidable marriages. One of the grounds on which a decree of annulment can be passed is “that the marriage has not been consummated owing to the impotency of the respondent.”
10. Section 13 deals with divorce. Grounds on which the decree for divorce can be sought are mentioned in the said section.
11. However, Section 25 provides for grant of permanent alimony and maintenance to any of the parties to a marriage at the time of passing any decree under the Act or at any time subsequent thereto.
12. It appears that it may be permissible for the Court granting a decree under Section 12 of the Act to grant maintenance to a wife whose marriage has been annulled under Section 12 of the Act but can her status be recognised as a wife under section 125 of the Code ? It talks only of a “divorced wife,”
13. The expression “divorce” has not been denned any where in the Hindu Marriage Act or in the Code. According to Webster Third New International Dictionary “divorce”s inter alia, means “an absolute dissolution of a valid marriage made by decree of Court for lawful case arising after the marriage…….distinguished from annulment.” According to this Dictionary the expression “annulment” means, “the act of annulling or of being annulled……….a judicial pronouncement declaring the invalidity of a marriage—distinguished from divorce and separation.
14. It ii obvious, therefore, that parties whose marriage has been annulled can no longer enjoy the status of husband and wife under the provisions of Section 125 of the Code. To come within the definition of Explanation (b) to Section 125(1) of the Code qua Hindus, “divorced wife” is a wife who has been divorced or has obtained divorce under Section 13 of the Act.
15. In view of the above discussion the petition succeeds. The impugned order is hereby quashed.