Court: ANDHRA PRADESH HIGH COURT
Bench: JUSTICE N.Y. Hanumanthappa & V. Bhaskara Rao
L. SRINIVASULU REDDY Vs. L. RAMALAKSHUMMA & ANR.
Determination of quantum of maintenance.
This is a reference by our learned Brother B.S.A. Swamy, J., seeking an authoritative pronouncement on the question whether the wife who deserted her husband on her own accord and suffered a decree of divorce under Section 13(1) of Hindu Marriage Act on that ground is entitled to claim maintenance under Section 125 of Code of Criminal Procedure.
2. A few facts which are necessary to dispose of this revision case are :
That the revision petitioner is the husband and respondent No. 1 is the wife. They will be referred to hereinafter as husband and wife. The marriage was solemnized on 7.9.78 as per Hindu Rites in Peddachoutapally village in Cuddapah Mandal. They lived happily for some time. As the wife did not beget children, the husband married again at the instance of his father. That led to the estrangement between the husband and the wife. The husband filed a divorce petition under Section 13(1) of Hindu Marriage Act in O.P. No. 59/1985 on the file of Subordinate Judge, Cuddapah, on the ground that the wife deserted him for more than two years and the said petition was allowed granting divorce. The wife preferred an appeal to this Court in AAO. No. 732/1987 against the order of the granting divorce, but the same was dismissed and the lower Court’s order was confirmed. It is note worthy that the learned Subordinate Judge gave a finding in the aforesaid O.P. that the husband cannot escape the liability of maintaining his wife (divorcee) even though a divorce decree was granted. As far as this finding is concerned, this Court did not choose to interfere with the same and on the other hand it confirmed the same. Till July, 1991, the wife was said to be residing with her husband at Peddachoutapally village and subsequent to the orders of this Court confirming the decree of divorce, she was driven out of the house and thus, she was forced to reside with her brother in Revindra Nagar. During the pendency of the divorce proceedings, the husband was paying an interim maintenance of Rs. 350/- per month, but the same was stopped after the final orders were passed. As the wife was not in a position to earn anything, she filed an application under Section 125 of Code of Criminal Procedure before I Additional Munsif Magistrate, Cuddapah, which was numbered as MC. No. 4/1992. She alleged inter alia that her husband was earning Rs. 3,500/- per month by way of salary and Rs. 10,000/- per annum from his lands and he also owns a house at Peddachoutapally. It is her case that the husband is bound to maintain her even though divorce was granted as she is not remarried and that the husband willfully neglected to maintain her.
3. The husband opposed the said application by denying his liability to maintain her on the ground that she is a divorcee pursuant to an order passed in a Civil proceeding and she is not entitled for maintenance as she herself deserted him and that he never neglected to maintain her. It is further asserted that she was living with her brother by eking her livelihood by selling milk and hence she is not entitled for maintenance. It is also contended that when once the appeal filed by her, AAO No. 732/1987, has been dismissed by this Court, he is not liable to maintain her. Regarding income, it was stated that he was not getting so much income as is alleged by her and on the other hand he gets a monthly salary of Rs. 2,650/- out of which an amount of Rs. 250/- is deducted and he has no landed property or house. He added that he has to maintain himself, his aged parents and an unmarried sister.
4. During enquiry in MC. No. 4/1992, the wife examined herself as PW 1 and examined another person as PW 2 and got Exs. P1 to P 4 marked while the husband examined himself as RW1 and got Ext. R1 marked. On a consideration of the above evidence, the learned Magistrate dismissed the application holding that she is not entitled for maintenance as divorce is granted on the ground that she herself deserted the husband and that she could not establish as to how she was being neglected by her husband. Aggrieved by the same, the wife preferred a revision to the Court of Session in Criminal Revision Case No. 7/1994 and the same was made over to the learned II Additional Sessions Judge, Cuddapah. After hearing both sides, the learned Additional Sessions Judge formulated the following point for consideration :
“Whether the petitioner (reference to wife) is entitled to claim maintenance under Section 125 of Code of Criminal Procedure” ?
After reappraisal of the evidence on record and relying upon T. Raja Rao v. T. Neelamma 1990 (1) APLJ NRC (SN) 77 and Bai Tahira v. Ali Hussain Fissalli, AIR 1979 SC 362 and Shehzadi Begum v. Mohd. Adbul Gaffar, 1981 Cr.LJ 1532, the learned Sessions Judge held that till the husband finally settles with the wife about her maintenance or till she is remarried, the husband is liable to maintain her. Accordingly the revision petition was allowed and an amount of Rs. 500/- per month has been awarded towards maintenance besides Rs. 500/- towards costs of the lower Court and Rs. 250/- towards costs of the Revisional Court.
5. Aggrieved by the order of the II Additional Sessions Judge, Cuddapah, reversing the order of I Additional Munsif Magistrate, Cuddapah, and awarding maintenance to the wife, this revision petition is filed in this Court by the husband. When it came up for hearing before our learned Brother B.S.A. Swamy, J., Mr. C. Padmanabha Reddy appearing for the wife supported the order with the aid of the judgment of the Supreme Court in Smt. Vanamala v. H.M. Ranganatha Bhatta, IV (1995) CCR 1 (SC)=1995 (3) Crimes 524 and a judgment of this Court reported in D. Lakshmana Rao v. Smt. E. Kamala Bai, 1996 (1) ALT (Cr.) 29 (AP). The learned Judge felt that there is no proper discussion on the language of Section 125(1) of Code of Criminal Procedure and no finding was recorded with regard to the meaning of the words “neglects or refuses to maintain”. It is further held that if the view taken by this Court in the judgment in D. Lakshmana Rao v. Smt. E. Kamala Bai, (supra) is to be accepted, it is nothing but giving premium to a wife who is at fault and who withdrew her company from her husband willingly or voluntarily and subjected her husband to cruelty. The learned Judge also adverted to the judgment Bai Tahira v. Ali Hussain Fissalli (supra) and held that the decision also does not throw any light on the language used in Section 125(1) of Code of Criminal Procedure and hence he feels that an authoritative pronouncement on this aspect is needed. Accordingly the matter is directed to be placed before the Hon’ble the Chief Justice to refer the matter to a Division Bench for deciding the issue raised in this revision petition and thus, this revision petition has come up for hearing before us.
6. The point for consideration is whether a divorced wife, when a finding is recorded that she alone deserted her husband in an application under Section 13(1) of Hindu Marriage Act and if she continues as a divorcee without being married again, is entitied for maintenance and what is the effect of Sub-section (4) of Section 125 of Code of Criminal Procedure upon Sub-section (1) thereof.
7. It is contended by Mr. Harisesha Reddy, the learned Counsel appearing for the husband that the wife is not entitled for any maintenance as she suffered a divorce decree. The divorce was granted on the ground that the wife herself deserted the husband. It was also found that the wife failed to establish that she was neglected by the husband and that there was any demand on her part to grant maintenance. It was also contended that even though there was a demand by the wife for grant of maintenance, the husband is not obligated to maintain her because of her conduct; that the observation made by this Court in the civil proceedings that the husband is liable to maintain his divorced wife cannot be a basis for granting relief under Section 125 of Code of Criminal Procedure as the scope under Section 13(1) of the Hindu Marriage Act (for short ‘the Act’) and Section 125 of Code of Criminal Procedure are altogether different; that when the husband is not getting sufficient income to maintain himself and the other family members, directing him to pay the maintenance at the rate of Rs. 500/- per month is quite arbitrary and incorrect. Thus contending, the learned Counsel submitted that the petition be allowed. Mr. C. Padmanabha Reddy, the learned Senior Counsel appearing for the wife supported the order of the learned Sessions Judge wherein the learned Judge granted maintenance.
8. We perused both the orders of the Courts below and the terms of reference on which findings have to be’ recorded. Since there is a finding in the divorce proceedings that the wife is entitled for maintenance notwithstanding the fact that she is a divorcee till she is re-married, it is necessary to have a look at Section 13(1) of the Act and then take up for consideration the language of Sections 125(1) and (4) of Code of Criminal Procedure for consideration. Section 13(1) of the Act reads as follows :
“Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the selemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.”
A reading of the above makes it very clear that a party to the marriage can seek divorce on the grounds mentioned in Section 13(1) of the Act and it applies equally both to the husband and wife whereas the scope of Section 125 of Code of Criminal Procedure is limited to wife, minor children and parents who were unable to maintain themselves. All that is required to prove is that the person is having sufficient means to maintain but neglected or refused to maintain the wife, minor children or parents. The so-called ‘neglect’ or ‘refusal’ to maintain shall be proved by the person who seeks the relief. Explanation (b) to Section 125(1) of Code of Criminal Procedure defines the word ‘wife’ as follows :
“Wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried”.
Section 125(4) of Code of Criminal Procedure disentitles a wife to claim maintenance 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. According to this Section, even though the wife is entitled for maintenance even after getting divorce from her husband, is not entitled to claim the same if she is living in adultery. The scope of Sections 125(1) and 125(4) of Code of Criminal Procedure has come up for consideration both before this Court and also before the Supreme Court in several cases. The Supreme Court in the judgment Smt. Vanamala v. H.M. Ranganatha Bhatta, (supra) held that a divorced wife if not remarried is entitled to maintenance. In that case their Lordships explained the scope of Sections 125(1) and (4) of Code of Criminal Procedure as follows :
“Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses 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. In the 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. It is 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 had neglected or refused to maintain her”.
Further, the Supreme Court in Gurmit Kaur v. Surjit Singh @ Jeet Singh, I (1996) CCR 56 (SC), explained the scope of Section 125(4) of Criminal Procedure Code and reiterated its earlier view taken in the judgment Smt. Vanamala v. H.M. Ranganatha Bhatta, (supra) and observed as follows :
“In view of the divorce agreement referred to hereinabove, the marital relations have come to a terminus. By virtue thereof, the respondent had already contracted the second marriage. In other words, the first marriage has been put to an end. The appellant thereby became entitled to claim maintenance and will continue to do so, so long as she remains unmarried and she is unable to maintain herself”.
A Division Bench of this Court in Crl. M.P. Nos. 1581 and 1582 of 1989 dated 7.2.90 held that a divorced wife till she is remarried is entitled for maintenance. It was also observed that the divorce only brings the marriage between the parties dissolved. The same is the view taken by our learned Brother V. Rajagopala Reddy, J., in D. Lakshmana Rao v. Smt. E. Kamala Bai, 1996 (1) ALT (Cr.) 29 (AP) i.e., that a divorced wife is entitled for maintenance under Section 125(1) of Code of Criminal Procedure if she has no sufficient means to maintain herself.
9. From the above, it is clear that it is a person’s obligation to maintain his wife, minor children and aged parents, if it is shown that he has neglected them or refused to maintain them. Maintenance can be granted to them provided they are unable to maintain themselves. Further, a divorced wife who deserted her husband and has not remarried and is not living in adultery, is entitled for maintenance. Thus, it is a social obligation of any citizen to maintain the persons coming under all the categories of Section 125 of Code of Criminal Procedure. Further, Section 125(4) of-Code of Criminal Procedure disentitles a wife to get maintenance if she is living in adultery. In this context, a passage from the judgment of Supreme Court Smt. Vanamala v. H.M. Ranganatha Bhatta, (supra) is note worthy :
“On a 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 woman 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”.
10. The main thrust of argument of Mr. Harisesha Reddy is that the wife failed to establish “neglect or refusal to maintain” which is the sine qua non for an order under Section 125 of Code of Criminal Procedure and in fact the learned Magistrate held that the wife did not establish that the husband had neglected or refused to maintain her. We scanned the material on record and we are unable to agree with Mr. Harisesha Reddy. It is the case of the wife that she has been awarded maintenance at the rate of Rs. 350/- per month in the divorce proceedings and she was being paid that amount till final orders were passed by this Court. It is also her case that she has been driven out of the house by, the husband thereafter. In our view the very act of the husband in driving her out of his house would amount to negligence or refusal to maintain her. The learned Additional Sessions Judge has rightly come to the conclusion in the circumstances of this case that the wife is entitled for maintenance and hence the same is confirmed.
11. From the above discussion it is clear that a divorce obtained under Section 13(1) of the Act will not prevent a wife to make a claim for maintenance as long as she does not remarry.
12. In the case on hand, during the pendency of the Appeal AAO. No. 732/ 1987 this Court had granted interim maintenance of Rs. 350/- per month whereas the learned Sessions Judge while allowing the revision, increased the maintenance amount to Rs. 500/- per month. No evidence was produced before the Sessions Court by the wife to establish the other circumstances and to seek enhancement of the maintenance amount. The learned Sessions Judge would have been justified if he has restricted the maintenance amount to Rs. 350/- per month keeping open the right of the wife to seek for enhancement as and when circumstances warrant.
13. The reference sought is answered as follows :
The wife is entitled for maintenance even though she has been divorced by her husband as long as she remains unmarried and she is not in a position to maintain herself and in spite of her request, her husband has refused to maintain her or neglected her. Maintenance will be disallowed only when it is shown that the wife is remarried. Thus, the effect of Section 125(4) of Code of Criminal Procedure is that a divorced wife as defined under Section 125(1) Explanation (b) of Code of Criminal Procedure is entitled for maintenance. The scope of Section 125(4) has since been explained by the Supreme Court in the judgments Smt. Vanamala v. H.M. Ranganatha Bhatta, (supra) and Gurmit Kaur v. Surjit Singh @ Jeet Singh, (supra). Hence, we do not consider it necessary to dwelve upon the same aspect once again.
14. Having answered the points, this petition is allowed in part insofar, as it relates to the quantum of maintenance is concerned. The wife is entitled for maintenance at the rate of Rs. 350/- per month from the date of filing the application besides costs awarded by the Court below. The petitioner-husband shall be regular in payment of the maintenance amount. It is open to the wife to make an application for enhancement of the maintenance amount by leading satisfactory evidence.
Petition partly allowed.
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