Bombay High Court
Bhagwan Raoji Dale vs Sushma Alias Nanda Bhagwan Dale on 17
April, 1998
Equivalent citations: 1999 (5) BomCR 851, I (1999) DMC 168
Author: A Savant
Bench: A Savant, S Parkar
ORDER
A.V. Savant, J.
1. Heard all the learned Counsel : Mr. S.V. Kotwal for the petitioner-husband : Miss. Smita Mane for
respondent No. 1 wife and Mr. D.N. Salvi, A.P.P. for respondents No. 2 State.
2. This petition has been placed before us pursuant to the order passed by learned Chief Justice as a result
of the order dated 19th April, 1995 passed by G.R. Majithia, J., since the learned Judge thought that the
view taken by the Division Bench of this Court in the case of Sharadchandra Satbhai v. Indubai
Satbhai, 1978 Mh.L.J. 123 required reconsideration in view of the decision of the Apex Court in the case
of Bai Tahira v. Ali Hussian Fissalli Chothia, .
Majithia, J., observed that the question as to whether a divorced wife has a right to claim maintenance
under section 125(1) of the Code of Criminal Procedure, 1973 was important. He, therefore, directed the
office to place the matter before the learned Chief Justice. Consequently, the matter has been placed
before us for final hearing.
3. In the facts of the case before us the short question which arises for our consideration is whether the
first respondent wife against whom the petitioner has obtained a decree for divorce is entitled to get
maintenance under section 125 of the 1973 Code, The question really revolves around the interpretation of
Clause (b) of the Explanation to sub-section (1) of section 125 of the Code. Section 125 reads as under :
"125. (1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where
such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or 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 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;
Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to
make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such
minor female child, if married, is not possessed of sufficient means.
Explanation:- For the purpose of this chapter.
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to
have attained majority :
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and
has not remarried.
(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the
application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for
levying fines, and may sentence such person, for the whole or any part of each month's allowance
remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one
month or until payment if sooner made :
Provided that no warrant shall be issued for the recovery of any amount due under this section unless
application be made to the Court to levy such amount within a period of one year from the date on which
it became due :
Provided further that if such person offers to maintain his wife on condition of her living with him, and
she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may
make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for
so doing.
Explanation:---If a husband has contracted marriage with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refused to live with him.
(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.
(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, or that they are living separately by
mutual consent, the Magistrate shall cancel the order."
4. Before adverting to the question of law it is necessary to set out the facts in brief.
5. The petitioner married the first respondent at Malegaon in District Nasik on 19th December, 1974. The
wife left the husband's house on or about 4th May, 1978 and never went back to the matrimonial home.
The husband filed Hindu Marriage Petition No. 133 of 1978 on 12th June, 1978 in the Court of Civil Judge,
Senior Division, Dhule for restitution of conjugal rights alleging that the wife had deserted him without
any reasonable cause and without his consent and against his wish. The husband alleged that the wife left
the house leaving a writing that she was suffering from Tuber culosis and, therefore, was leaving the
house and no attempt should be made to trace her. However, the husband brought her back from the
State Transport Bus Stand; called her father who took her to his house for curing her ailment. However,
the wife's father informed the petitioner that the wife had no desire to go back to the matrimonial home.
The husband issued notice to the wife. The wife did not respond. Hence the husband filed the petition for
restitution of conjugal rights on 12th June, 1998.
6. Pending the petition for restitution of conjugal rights, the wife initiated the present proceedings for
maintenance under section 125 of the Code on 6th of February, 1979 before the J.M.F.C., Malegaon being
Maintenance Application No. 30 of 1979. The wife alleged in her application that the husband was illtreating
her and was making unlawful demand of some valuable articles from her and had asked her
father to take her away when her father took her to his house, the husband did not make any attempt to
bring her back to the matrimonial home nor did he care to provide for maintenance for her. It was alleged
that the husband was having a cycle shop and was earning about Rs. 5,000/- per month and, therefore,
the wife should get maintenance of Rs. 500/- per month.
7. The husband resisted the application for maintenance and denied the allegations made against him. He
contended that the wife had left the matrimonial home without any valid reason and though it was
decided that she will come back from her father's house within a short time, she failed to do so. The
petitioner contended that he had gone on several occasions to his father-in-law's house to bring his wife
back but she refused to return to the matrimonial home.
8. Pending the application for maintenance, the Hindu Marriage petition, for restitution of conjugal rights
was taken up for hearing. Though the wife was served with the petition, she remained absent. Issues were
framed as to whether the wife had withdrawn from the society of her husband without a valid reason and
whether the husband was entitled to restitution of conjugal rights. Both the issues were answered in
favour of the husband and a decree for restitution of conjugal rights was passed on 31st July, 1979. The
husband filed execution proceedings on 24th January, 1980, being Regular Darkhast No. 32 of 1980 but
the wife failed to comply with the decree for restitution of conjugal rights. This led to the husband's filing
Hindu Marriage Petition No. 264 of 1980 on 1st August, 1980 in the Court of the Assistant Judge, Dhule.
The husband relied upon the earlier decree passed in the petition for restitution of conjugal rights on 31st
July, 1979, the filing of Regular Darkhast No. 32 of 1980 and the failure on the part of the wife to comply
with the said decree for restitution of conjugal rights. Despite service of notice of the petition for divorce,
the wife remained absent at the trial. The learned Assistant Judge by his judgment and decree dated 3rd
December, 1980 decreed the petition for divorce.
9. When the husband filed his say in the present proceedings for maintenance under section 125 of the
Code, he relied upon the decree passed by the Civil Court initially on 31st July, 1979 for restitution of
conjugal rights and the subsequent decree passed on 3rd December 1980 granting him divorce. He
therefore, contended that the respondent was not entitled to apply under section 125 of the Code. Relying
upon the judgment of a learned Single Judge of this Court in Smt. Sugandhabai v. Vasant Ganpat
Deobhat, , the Magistrate came to the conclusion that though there was a decree for restitution of conjugal
rights and a consequent decree for divorce obtained by the husband, the wife was entitled to maintain an
application under section 125 of the Code. In the result, the learned Magistrate by his judgment and order
dated 3rd May, 1993 granted the application and ordered the petitioner to pay Rs. 150/- per month to the
wife towards her maintenance from the date of the filing of the application viz. 6th February, 1979.
10. Being aggrieved by the said judgment and order dated 3rd May, 1993 the petitioner filed Criminal
Revision Application No. 135 of 1993 in the Court of the Additional Sessions Judge at Malegaon.
Contentions which were raised in the trial Court were reiterated by the petitioner in the revisional Court.
The learned Additional Sessions Judge by his judgment and order dated 2nd March, 1994, came to the
conclusion that the trial Magistrate was justified in placing reliance on the judgment of the learned Single
Judge in Smt. Sugandhabai's case (supra) and even if there was a decree for divorce in favour of the
husband on the ground of desertion by the wife, the application for maintenance by the divorced wife was
maintainable and that section 125(4) of the Code would not be a bar to the maintainability of such an
application. The learned Additional Sessions Judge further held that the application for maintenance was
filed on 6th February, 1979 whereas the Hindu Marriage Petition No. 133 of 1978 for restitution of
conjugal rights was filed on 12th July, 1978 but was decreed on 31st July, 1979 and what was important
was that the Hindu Marriage Petition No. 264 of 1980 for divorce was filed on 1st August, 1980 and a
decree for divorce was obtained on 3rd December, 1980. In the circumstances, the learned Judge on 2nd
March, 1994, dismissed the revision application with costs. We have already indicated earlier that the
wife's application for maintenance, though filed on 6th of February, 1979, was decided on 3rd May, 1993.
11. Being aggrieved by the said judgment and order dated 2nd March, 1994 passed by the Additional
Sessions Judge, Malegaon on Criminal Revision Application No. 135 of 1993, the husband has filed this
petition on 5th May, 1994. Rule was issued on 16th August, 1994, and was made returnable on 21st
November, 1994. The matter was heard by Majithia, J., in April, 1995 and the learned Judge came to the
conclusion that the view expressed by the Division Bench in Sharadchandra Satbhai's case (supra)
required reconsideration. That is how the matter has been placed before us.
12. We will first refer to the decisions to which reference had been made by Majithia, J., in this referring
judgment. In Sharadchandra Satbhai v. Indubai Satbhai, 1978 Mh.L.J. 123 the facts were that the spouses
were married in January, 1963. They lived at Indore till April, 1969. On 14th April, 1969, wife Indubai left
the matrimonial home with her two minor children without informing the husband. The husband made
efforts to bring her back but the wife refused to go back to the matrimonial home. The husband filed Civil
Suit No. 10 of 1971 for a decree for judicial separation on the ground of the wife's desertion. The petition
was decreed ex parte on 4th August, 1973. In 1974 Indubai filed application for maintenance under
section 125 of the Code. The trial Magistrate rejected the application in view of the decree passed by the
Civil Court holding that the wife had deserted the husband. Against the order refusing maintenance, the
wife moved the revisional Court which allowed the application relying upon Explanation (b) to subsection
(1) of section 125 which defines the wife to include a woman who has been divorced by, or has
obtained a divorced from, her husband and has not remarried. The order of the revisional Court granting
maintenance to the wife was challenged by husband Sharadchandra in this Court. The Division Bench
took the view that since Civil Court had determined the issue of desertion and held that the wife had
deserted the husband without reasonable cause and without his consent and against his wish, she was
guilty of refusing to live with her husband and, therefore, she was not entitled to maintenance under
section 125 of the Code. Reliance was placed by the Division Bench on sub-section (4) of section 125 and
the petition filed by the husband was allowed. This Court considered Explanation (b) to sub-section (1) of
section 125 where the word "wife" has been defined to include a woman who has been divorced by, or has
obtained divorce from, her husband and has not remarried but observed that this was subject to subsection
(4) of the section 125 of Code.
13. In Bai Tahira v. Ali Hussain Fissalli Chothia,
the spouses were married in 1956. Bai Tahira was the second wife of Ali Hussain. He had a son by her. Ali
Hussain divorced Bai Tahira around July 1962. There was dispute about a flat in Bombay where the
matter was compromised providing for the flat vesting in the wife absolutely and the wife agreeing that
she had no claim or right whatsoever in the other properties of the husband. The 'mehar' money of Rs.
5,000/- and the 'iddat' money of Rs. 180/- was adjusted in the said compromise terms. However the wife
moved an application under section 125 of the Code for a monthly allowances for the maintenance of
herself and her child. Asserting that she was a divorcee, she claimed that she was entitled to maintenance.
The trial Magistrate awarded a monthly allowance of Rs. 300/- for the child and Rs. 400/- for the wife.
The Sessions Judge, on a revision by the husband, took the view that under section 125, the Court had no
jurisdiction to consider whether the applicant was a "wife" and dismissed her claim. The High Court
summarily dismissed the wife's revision which resulted in the wife's approaching the Apex Court. The
Apex Court considered the definition of the word "wife" in Clause (b) of the explanation to sub-section (1)
of section 125 and held that a divorcee, otherwise eligible, is entitled to the benefit of maintenance
allowance and the dissolution of the marriage makes no difference to this right under the Code. As stated
earlier, the husband had divorced the wife around July 1962. In our view, therefore, Bai Tahira's case was
squarely covered by the first limb or Clause (b) of the Explanation to section 125(1) viz. wife includes a
woman who has been divorced by her husband. The second limb or Clause (b) deals with the wife who has
obtained a divorce from her husband. Having held this, the Apex Court considered the effect of section
127(3)(b) of the Code. Section 127 deals with alteration in allowance and reads as under:
"127.(1) On proof of a change in the circumstance of any person, receiving, under section 125 a monthly
allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or
mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit :
Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not
be exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court,
any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case
may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or
has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that -
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her
remarriage :
(b) the woman has been divorced by her husband and that she has received, whether before or after the
date of the said order, the whole of the sum which, under any customary or personal law applicable to the
parties, was payable on such divorce, cancel such order,---
(i) in the case where such sum was paid before such order, from the date on which such order was made.
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been
actually paid by the husband to the woman.
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her
rights to maintenance after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to
whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into
account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance
of the said order."
14. It will be evident from Clause (a) of sub-section (3) of section 125 that it deals with the woman who
has, after the date of divorce, remarried which was not the position in Bai Tahira's case. Clause (b) of subsection
(3) was pressed into service on behalf of the husband in Bai Tahira's case. Reliance was placed on
the compromise terms under which the amount of the 'mehar' money and 'iddat' money was adjusted and
the wife had declared that she had no claim or right whatsoever against the husband or against any of his
properties. Dealing with this contention of the husband, the Apex Court observed in para 12 of the
judgment at page 366 as under :
"12..... The purpose of the payment 'under any customary or personal law' must be to obviate destitution
of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of section
127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment
organised by the custom of the community or the personal law of the parties. There must be a rational
relation between the sum so paid and its potential as provision for maintenance : to interpret otherwise is
to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful..."
The Apex Court concluded its reasoning by observing as under at the end of para 12 on page 366 :
"..... The proposition, therefore, is that no husband can claim under section 127(3)(b) absolution from his
obligation under section 125 towards a divorced wife except on proof of payment of sum stipulated by
customary or personal law whose quantum is more or less sufficient to do duty for maintenance
allowance."
It was in this view of the matter that the Apex Court allowed the wife's appeal and restored the order
passed by the trial Magistrate granting her maintenance at the rate of Rs. 400/- per month.
15. In the case before us, the principle question is whether the respondent can claim the benefit of the
extended definition of the word "wife" appearing in Clause (b) of the Explanation to section 125(1). In Bai
Tahira's case, the wife was divorced by the husband, her case was clearly covered by the first limb of
Clause (b) of the Explanation. In the case before us, the husband had filed a petition for restitution of
conjugal rights on 12th June, 1978. He obtained a decree on 31st July, 1979. He filed Darkhast
proceedings for execution of the said decree. Having failed to obtain execution, he filed petition for
divorce on 1st August, 1980 and obtained a decree on 3rd December, 1980. Admittedly, there is no appeal
against any of the decree obtained by the husband. Those decrees have become final. The conclusion
arrived at by the Civil Court is that the wife had withdrawn herself from the society of her husband
without any reasonable cause and without the concept or wish of the husband. She had failed to comply
with the decree for restitution of conjugal rights and there was no legal impediment for granting the
decree for divorce.
16. A close scrutiny of the phraseology used in Clause (b) of the Explanation to section 125(1) shows that it
is in two parts. The first part deals with a wife who has been divorced by her husband which, in our view
would, normally, apply to parties professing the Muslim religion or whereunder a customary law
applicable to some Hindus, the husband is entitled to unilaterally divorce the wife. This is because the
words used are that the. "woman has been divorced by the husband". The second part deals with the case
whether the wife has obtained a divorce from her husband. This contemplates the wife moving the Court
for a decree for divorce and the wife obtaining a decree for divorce from her husband. Undoubtedly, in
either of the two situations falling is Clause (b), the wife has not remarried. If this is the true
interpretation of Clause (b) of the Explanation, then in our view, the respondent's case cannot fall under
the said Clause (b). On the date when the Magistrate passed the order in the application under section 125
viz. on 3rd May, 1993, the respondent was a divorcee. But she was not falling in any of the two categories
contemplated by Explanation (b) of section 125(1). In our view, therefore, the respondent cannot draw any
support from the ratio of the decision of the Apex Court in Bai Tahira's case.
17. In the light of what we have stated above, we do not think that the view taken by the Division Bench of
this Court in Sharadchandra Satbhai's case requires reconsideration. As stated earlier, in Sharadchandra
Satbhai's case also, as in the present case, the wife left the matrimonial home. The husband filed a suit for
judicial separation and obtained a decree on the ground that the wife had deserted. Relying upon this fact,
the learned Magistrate had dismissed the application under section 125 for maintenance. The Revisional
Court had allowed the wife's application against which the husband had approached this Court. This
Court allowed the husband's application and, in the result, dismissed the wife's application for
maintenance. While arriving at its conclusion, the Division Bench in Sharadchandra Satbhai's case
considered the effect of Explanation (b) to section 125(1) as also sub-section (4) of section 125. Para 8 of
the judgment at page 126 may usefully be reproduced.
"8. It is, however, open to a wife who is unable to maintain herself and her husband who has sufficient
means to maintain her but nevertheless neglects or refuses to do so, to make an application under section
125, Criminal Procedure Code, 1973, and seek an order for maintenance, subject to the conditions and
limitations of that section. Explanation (b) of section 125(1) clarifies that even if she is a divorcee, she can
claim maintenance provided she is not remarried. Sub-section (4) disentitles a wife to receive allowance in
certain cases, one of them being "if without any sufficient reason, she refuses to live with her husband".
This sub-section governs the whole of section 125. Now, in a case like the present one, when the Civil
Court has determined the issue of desertion and held that the wife has left her husband without
reasonable cause and against his wish and without his consent can it be said that she is still entitled to
maintenance under section 125 and not hit by sub-section (4)? It is plain and simple that she has refused
to live with her husband without any sufficient reason and, therefore, disentitled herself to receive
maintenance under section 125. The effect of the decree for judicial separation on this particular ground
of desertion cannot be overlooked by the Magistrate dealing with an application under section 125
because he has to bear in mind the disability created by sub-section (4) of that section. The fact that a
decree for judicial separation has been passed in favour of the husband on the ground of desertion means
that the wife is guilty of refusing to live with her husband. In our judgment, Indubai is not entitled to
maintenance under section 125, Criminal Procedure Code, 1973, as she has no reasonable ground not to
live with her husband. The approach of the learned Additional Sessions Judge overlooks the object and
purpose of sub-section (I) of section 125. It is true that a divorcee is entitled to approach the Magistrate
under section 125 for speedy remedy. So could a wife against whom a decree for judicial separation is
passed, but a wife who has deserted her husband within the meaning of the Explanation to section 10(1) of
the Hindu Marriage Act, 1955, as discussed above, is not entitled to apply under section 125 of Criminal
Procedure Code, 1973".
We are in respectful agreement with the view expressed by the Division Bench in Sharadchandra Satbhai's
case.
18. We now deal with some of the cases to which a brief reference is necessary. In Baburao Akaram
Kalaskar v. Kusum Baburao Kalaskar, 1980 Mh.L.J 871 the spouses were married on 12th May, 1965 and
lived together till August 1969 when the wife left the husband's house and went to her parents house. She
lived there for about two and half years and filed a petition under section 10 of the Hindu Marriage Act
alleging cruel treatment meted out to her by her husband and desertion by the husband who was alleged
to have married a second wife. Pending the petition under section 10, the wife filed an application under
section 125 of the Code. Pending her application under section 125 her petition under section 10 was
dismissed on 28th September, 1977. The Magistrate, however, granted her maintenance in the
proceedings under section 125. Revision filed by the husband was dismissed by the Sessions Court and the
husband approached the High Court under section 482 of Criminal Procedure Code contending that in
view of the earlier order passed in a petition under section 10 of the Hindu Marriage Act, the application
under section 125 was liable to be dismissed. The learned Single Judge S.W. Puranik, J., took the view that
on the same set of facts as were alleged in the two proceedings one under the Hindu Marriage Act and the
other under section 125 of the Code, there was no change of circumstance from 1969. The earlier decision
of the Civil Court showed that the husband had ill-treated the wife and that he had not remarried and
further that he had not driven the wife out of the matrimonial house or withdrawn himself from her
society. It was implicit in this decision of the Civil Court that it was the wife who was living away from the
husband without a valid cause. In this view of the matter, this Court allowed the husband's petition and
dismissed the wife's application for maintenance under section 125.
19. In Smt. Shantabai Saitwal v. Jindas Baburao Saitwal, 1985(2) Crimes 901 (Bom.), the spouses were
married for about 35 years and, thereafter, separated. In September 1978, the wife filed application under
section 125 of the Code praying for maintenance. The trial Magistrate granted her Rs. 200/- per month as
maintenance. The husband filed revision application which was dismissed on 31st July, 1979. In the
meanwhile the husband had filed a petition for divorce on the ground of adultery and desertion. The
petition was dismissed by the learned trial Judge on 9th December, 1978. The husband filed an appeal in
the Madhya Pradesh High Court which, by its judgment and order dated 31st November, 1979, allowed
the appeal and granted a decree for divorce on the ground of desertion. The husband- thereafter applied
under section 127 of the Code on 18th July, 1980 praying for cancellation of the order of maintenance in
view of the changed circumstances. The trial Magistrate rejected the application on 19th March, 1981. In
the result, the order of maintenance stood cancelled. The wife, therefore, approached this Court in
revision. Reliance was placed by the wife on Explanation (b) of section 125(1) contended that even a
divorcee can claim maintenance. Relying upon the ratio of the Division Bench decision in Sharadchandra
Satbhai's case (supra), the learned Single Judge D.N. Mehra, J., took the view that the fact that there was
a decree for divorce obtained by the husband on the ground of desertion clearly meant that the husband
had proved that the wife had left him without any reasonable cause and without his consent and against
his wish and, therefore, she was not entitled for maintenance under section 125 of the Code. In the result
the wife's application was dismissed.
20. In Kalidas Durgaji Shinde v. Parwatibai Kalidas Shinde, , the spouses were married for about 6 years
and the wife had alleged ill treatment and cruelty on the part of the husband. The wife went and stayed
with her brother. Attempts to bring about reconciliation failed. The husband thereafter filed petition for
restitution of conjugal rights, as has been done in the case before us. He obtained a decree for restitution
of conjugal rights. Since the decree for restitution of conjugal rights was not obeyed, the husband filed a
suit for divorce and obtained a decree for divorce. In the application for maintenance under section 125 of
the Code, the husband denied his liability to pay maintenance in view of the above facts. The trial
Magistrate held that the wife had not proved that the husband had refused and neglected to maintain her
and hence rejected her application. The Sessions Judge took the view that since the wife was a divorcee,
she was entitled to claim maintenance in view of Explanation (b) to section 125(1). He therefore, awarded
Rs. 50/- per month to her. The husband approached this Court in revision and the main contention was
that merely because she was a divorcee, by itself, the status of a divorcee cannot invest her with a right to
seek maintenance. This Court considered the decision of the Apex Court in Bai Tahira's case and the
Division Bench decision of this Court in Sharadchandra Satbhai's case, judgment. Relying upon the fact
that there was a decree for restitution of conjugal rights and thereafter a decree for divorce obtained by
the husband during the pendency of the proceedings under section 125 and holding that there was no
refusal and neglect to maintain the wife since she had deserted the husband as held by the Civil Court, the
application for maintenance of the wife was dismissed by the learned Single Judge- M.S. Deshpande, J.
The argument that a divorcee would automatically be entitled to claim maintenance was rejected and it
was held that Explanation (b) to section 125(1) only gives an extended meaning to the term "wife" and
does not enlarge the rights of a wife if in course of time she became a divorcee. In the result, the husband's
revision application was allowed.
21. It is true that in Smt. Sugandhabai v. Vasant Ganpat Deobhat, 1992(1) Mh.L.J.427: 1992 Cri.L.J. 1838,
a learned Single Judge M.S. Vaidya, J., has taken the view that a decree for divorce in favour of the
husband on the ground of discretion by the wife would not disentitle her from claiming maintenance
under section 125 of the Code. The learned Judge was disposing of two cases by a common judgment and
order. In Criminal Application No. 46 of 1989 the wife's application for maintenance was dismissed by the
trial Magistrate on 3rd March, 1979 on the ground that neglect of the wife by the husband was not proved.
Wife's revision was dismissed by the Sessions Court on the same ground on 4th January, 1980. The
husband then filed Hindu Marriage Petition No. 25 of 1980 alleging desertion by wife. The petition was
decreed on 30th September, 1982 and divorce was granted to the husband. No application for
maintenance or permanent alimony was preferred by the wife had, hence, there was no occasion for
making an order under section 25 of the Hindu Marriage Act, 1955. Though the wife had failed earlier in
her application under section 125 in both the courts, she filed a fresh application in the year 1982 after the
husband had obtained a decree for divorce and claimed maintenance on the ground that she was a
divorcee but was unable to maintain herself. The trial Magistrate dismissed the application on 18th
October, 1985 on the ground of res judicata. Revision was also dismissed by the Sessions Court on 25th
January, 1988. The wife approached this Court. In the second case decided by M.S. Vaidya, J., being
Criminal Application No. 585 of 1991, the marriage had taken place on 17th March, 1979. Child was born
on 6th March, 1980. The wife had filed the petition for restitution of conjugal rights on 3rd January, 1983
and obtained a decree on 29th April, 1983. Thereafter she applied under section 125 of the Code on 23rd
November, 1983. The application was granted only so far as the child was concerned but the wife's claim
was rejected on the ground that she had deserted the husband. The husband thereafter preferred Hindu
Marriage Petition No. 334 of 1987 for divorce. The same was decreed on 1st December, 1988 and divorce
was granted to him on ground of desertion. The wife's appeal to the District Court was dismissed on 30th
July, 1990. The wife had also, in the meanwhile, filed a revision against the dismissal of her claim of
maintenance. That revision also was dismissed on 19th January, 1989. The wife, therefore, approached
this Court in revision. The learned Single Judge considered the view of the Division Bench in
Sharadchandra Satbhai's case as also the view expressed by D.N. Mehta, J., in Shantibai Saitwal's case but
came to the conclusion that the ratio of the Division Bench decision was inapplicable to the facts of the
case before him and further that D.N. Mehta, J., had misapplied the ratio of the Division Bench decision
in Sharadchandra Satbhai's case. Vaidya, J., referred to the decision of the Gujarat High Court in Patel
Dharamshi Premji v. Bai Sakar Kanji, A.I.R. 1986 Guj. 150 where it was held that under section 25 of the
Hindu Marriage Act, 1955 permanent alimony can be granted even to an erring wife and the mere fact that
the wife did not comply with the decree for restitution of conjugal rights and that was the cause for
passing the decree against her, cannot by itself, disentitle her to claim permanent alimony under section
25 of the Hindu Marriage Act. Relying upon some other decisions with which we do not think it necessary
to burden this judgment, Vaidya, J., came to the conclusion that the ratio of the Division Bench decision
in Sharadchandra Satbhai's case was not applicable to the two cases before him. In para 14 of the
judgment in Sugandhabai's case at page 1844 a reference is made to the decision of the Apex Court in Bai
Tahira's case. The learned Single Judge set aside the orders passed by two courts below which were
against the wife and remanded the matter back to the Magistrate with a direction to allow the parties to
adduce evidence. With respect, we find it difficult to agree with the view expressed by Vaidya, J., in Smt.
Sugandhabai's case in view of our discussion in paras 14 to 17 above and in particular the reasons
mentioned in paras 15 and 16. We are in agreement with the view expressed by the Division Bench in
Sharadchandra Satbhai's case (see para 12 and 17 above). We are also in agreement with the view
expressed by the learned Single Judge in the three cases discussed above (i) Baburao Kalaskar's case,
decided by Puranik J. (para 18 above), (ii) Smt. Shantabai Saitwal's case decided by Mehta, J., (para 19
above) and (iii) Kalidas Shinde's case decided by Deshpande, J., (para 20 above).
22. At this juncture we think it necessary to make a reference to some of the Apex Court decisions which
have a bearing on the issue. As far back as in 1981 the Apex Court had an occasion to consider the scheme
of the provisions of section 125(1) with particular reference to the extended definition of the word "wife"
appearing in Explanation (b) to section 125(1) of the Code in Mst. Zohara Khatoon v. Mohd. Ibrahim, .
The wife, Zohara Khatoon made an application under section 125 of the Code on 17th September, 1974
praying for maintenance for herself and her minor son. The trial Magistrate by his order dated 29th
December, 1976 granted Rs. 100/-per month for both. The Magistrate accepted the wife's case that the
husband had neglected to maintain her. The order of the Magistrate was confirmed by the Sessions Judge
in revision. The husband had pleaded in the trial Court that the wife had sued for dissolution of marriage
on the ground of cruelty and wilful neglect under the Dissolution of Muslim Marriage Act, 1939 and the
suit was decreed by the Civil Court on 15th January, 1973. Since the wife was living separately she had
ceased to be the wife and was not entitled to maintenance. Since husband had failed in both the courts he
moved the High Court under section 482 of the Code. The wife had contended in the High Court that in
view of Explanation (b) to section 125(i), she continued to be the wife despite obtaining a decree for
dissolution of marriage. The High Court came to the conclusion that Explanation (b) would apply only if
the divorce proceeded from the husband i.e. to say that the said Clause would not apply unless the divorce
was given unilaterally by the husband or obtained by the wife from the husband. The High Court,
therefore, rejected the application of the wife while maintaining the order in favour of the minor son. The
wife approached the Apex Court. The Apex Court discussed the old provisions contained in section 488 of
the 1898 Code and the change brought about in the 1973 Code. It discussed its earlier judgment in Nanak
Chand v, Chandra Kishore Agarwal, where the view expressed by the Allahabad, Calcutta and Patna High
Court was considered. A reference was made to some more decisions of the Madras, Hyderabad,
Allahabad High Court and also of this Court. In (re Shekhanmain), A.I.R. 1930 Bom. 178. In para 17
onwards at page 517, the Apex Court considered the two categories falling under Explanation (b) to
section 125(1) viz. (i) a woman who has been divorced by her husband and (ii) a woman who has obtained
a divorce from her husband, in either case, her not having remarried. While referring to the fact that the
first category viz. a woman who has been divorced by her husband, would normally apply to a case where
a divorce is given unilaterally by her husband which is peculiar to Mohammedan law, the learned Judge-
Fazal Ali, J., expressed the view that the High Court was in error in not appreciating the fact that the wife
had obtained a divorce on the ground of cruelty under the Dissolution of Muslim Marriages Act, 1939 and,
therefore, her case was clearly covered by the second category in Explanation (b) viz. a woman who has
obtained divorce from her husband. If that was so, she was clearly entitled to the grant of maintenance
and the High Court was in clear error in not appreciating the distinction between the two categories of
woman included in the definition of wife under Explanation (b) to section 125(1).
23. The Apex Court, in Mst Zohara Khatoon's case, then made a reference to the distinction between
Clauses (b) and (c) of sub-section (3) of section 127 of the Code in arriving at its conclusion as above.
Clause (b) of sub-section (3) of section 127 would apply where the divorced wife falls in the first category
of Explanation (b) to section 125(1) viz. a woman who has been divorced by her husband. On the other
hand Clause (c) of sub-section (3) of section 127 would apply to a woman who falls in the second category
of Explanation (b) to section 125(1) viz. a woman who has obtained a divorce from her husband. These
observations are to be found in para 28 of the judgment at page 521-522. In Zohara Khatoon's case the
appellant-wife had obtained a decree for dissolution of marriage under the Dissolution of Muslim
Marriages Act, 1939. The Apex Court came to the conclusion that she was entitled to make an application
for maintenance and, therefore, her appeal was allowed and the order of the High Court was set aside.
24. In his concurring judgment A.D. Koshal, J., referred to the dictionary meaning of the word "obtained"
appearing in the second part of Explanation (b) to section 125(1). The learned Judge held that the
expression "a woman who has "obtained" a divorce from her husband" would include a wife who has been
granted a decree for dissolution of marriage by the Court since that was the admitted fact in Zohara
Khatoon's case, in as much as, she had filed a suit for dissolution of marriage on the ground of cruelty
under the Dissolution of Muslim Marriages Act, 1939. It was, therefore, held that she was entitled to claim
maintenance under section 125 of the Code. Observations to this effect are to be found in paras 36 to 39 of
the judgment at pages 524-525.
25. We are bound by the observations of the Apex Court and it is clear to us that the respondent is not a
woman falling in either of the two categories contemplated in Explanation (b) to section (1). Admittedly,
the parties before us are governed by Hindu Law. Assuming that under some customary law, a Hindu
could unilaterally divorce his wife, no such facts exist before us. The first part of explanation (b) viz. wife
includes a woman who has been divorced by her husband is, therefore, wholly inapplicable to the first
respondent. The second part viz. wife includes a woman who has obtained a divorce from her husband is
equally inapplicable since, unlike Zohara Khotoon's case, it is not the respondent-wife who had moved the
Matrimonial Court of Divorce; it was the petitioner-husband who initially filed a petition for restitution of
conjugal rights; obtained a decree; tried to obtain execution thereof and having failed to do so, filed a suit
for divorce and obtained a decree for divorce on 3rd December, 1980. The petition for maintenance was
allowed as late as on 3rd May, 1993 by the trial Magistrate. We must hasten to add that in Bai Tahira's
case (supra) the Apex Court was dealing with a case where the respondent-husband had unilaterally
divorced the wife apparently because the parties were governed by Muslim Law. This is clear from the set
out in para 2 of the judgment in Bai Tahira's case at page 363 of A.I.R. 1979 S.C. None of the said
situations exists before us and hence we find it difficult to apply the ratio of the decision of the Apex Court
either in Bai Tahira's case, or in Zohara Khatoon's case, to the facts of this case. We are dealing with a case
where, admittedly, the husband approached the Court on 12th June, 1978 for restitution of conjugal rights
alleging desertion by the wife without reasonable cause and without his consent and against his wish. It
was pending such a petition for restitution of conjugal rights that the wife thought it fit to apply for
maintenance on 6th February, 1979 under section 125 of the Code. The petition for restitution of conjugal
rights was decreed on 31st July, 1979. No appeal was filed against the said decree. Regular Darkhast No.
32 of 1980 was filed by the husband on 24th January 1980. Having failed to obtain execution, the
husband filed Hindu Marriage Petition No. 264 of 1980 on 1st August 1980 and obtained a decree for
divorce on 3rd December, 1980. No appeal was filed against the decree either. All these facts and the
documents in support thereof were placed before the learned Magistrate who has decided the application
for maintenance as late as on 3rd May, 1993 and has granted the same. In our view, reliance placed by the
trial Judge as also by the learned Additional Sessions Judge on the decision of Vaidya, J., in Sugandhabai
v. Vasant Deobhat, 1992(1) Mah.L.J. 427 : 1992 Cri.L.J. 1838 was wholly erroneous.
26. Apart from the legal position emerging from the decisions referred to above, it appears to us that, in
the facts and circumstances proved in this case and particularly in the light of the decree for restitution of
conjugal right, the wife was not entitled to obtain maintenance even when the marriage was subsisting. In
this behalf sub-section (4) of section 125 needs to be considered. If the respondent-wife had refused to live
with her husband without any sufficient reason, she would not have been entitled to receive any allowance
from her husband under section 125 of Code. Sub-section (4) of section 125 clearly states that no wife shall
be entitled to receive an allowance from her husband under section 125 if (i) she is living in adultery or (ii)
without any sufficient reason she refuses to live with her husband or (in) they are living separately by
mutual consent. The fact that the husband obtained a decree for restitution of conjugal rights on 31st July,
1979 in a petition filed by him on 12th June, 1978 would, in our view, clearly disentitle the wife from
receiving maintenance in view of the mandate of sub-section (4) of section 125. It is true that Explanation
(b) to section 125(1) states that for the purpose of Chapter IX the wife includes a woman who has been
divorced by, or has obtained a divorce from her husband has not remarried. However, the Apex Court has
set at rest the controversy as to whether the express "wife" in sub- section (4) of section 125 can have the
extended meaning of including a woman who has been divorced. If the relationship of husband and wife
has come to an end as a result of the decree for divorce, there can be no question of a divorced woman
living in adultery or without sufficient reason refusing to live with her husband. After divorce there is no
occasion for a woman to live with her husband. There would be no question of husband and wife living
separately by mutual consent because after divorce there is no need or consent to live separately. This has
been clearly stated by the Apex Court in Vanmala v. H.M. Rangnath Bhatta, . We have come to the
conclusion that on the date on which the learned Magistrate passed the order dated 3rd May, 1993, the
respondent-wife was not entitled to obtain maintenance since she did not fall in any of the two categories
contemplated by Explanation (b) to section 125(1) of the Code. In this view of the matter, it is not even
necessary for us to consider the effect of provisions of sub-section (4) of section 125 in the facts of the case
before us.
27. It appears to us further that if the wife is at fault and if the husband succeeds in obtaining a decree for
restitution of conjugal rights, as long as the marriage subsists, the wife would not be entitled to claim
maintenance in view of sub-section (4) of section
125. Would it, then be permissible to saddle the husband with maintenance of such a wife has been
divorced pursuant to a decree passed by a Competent Court as a result of the failure on the part of the wife
to obey the decree for restitution of conjugal rights. In our view the answer must be in the negative.
Granting maintenance to such a wife would be tantamount to permitting a person to take advantages of
one's own wrong. Finding of the Civil Courts in the two matrimonial petitions, one for restitution of
conjugal rights and other for divorce is that the wife was in the wrong. That finding has not been
challenged in a Superior Court. The two decrees are final. We must, therefore, proceed on the footing that
the wife was in the wrong. If our view, therefore she is not entitled to maintain an application by taking
advantages of the extended meaning in Explanation (b) to section 125(1) of the Code.
28. There is yet another facet of the matter which needs a mention. Under sub-section (2) of section 127
where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any
order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may
be, vary the same accordingly. Shri Kotwal the learned Counsel for the husband rightly contended that in
the face of the two decrees passed by the Civil Court, even if there were an earlier order granting
maintenance to the wife, on the husband's obtaining a decree for divorce on the basis of a finding that the
wife was in the wrong, the Magistrate would be obliged to cancel the order of maintenance.
29. The view that we are taking may be against the wife but it is not as if the wife is without any remedy.
Section 25 of the Hindu Marriage Act, 1955 empowers the Court exercising jurisdiction under the Hindu
Marriage Act, at the time of passing of the decree or at any time subsequent thereto, to direct the spouse
that he shall pay maintenance to the applicant under section 25 of said Act. In the present case, at the
time of passing of the decree for divorce on 3rd December, 1980, the respondent-wife made no such
application. Assuming that in a given set of facts, unlike the present case, the divorced wife is entitled to
obtain maintenance, nothing prevents her from invoking the jurisdiction of the competent Civil Court
under section 25 of the Hindu Marriage Act, 1955.
30. Shri Kotwal went to the extent of contending that under section 18(1) of the Hindu Adoption and
Maintenance Act, 1956 also, a divorced wife may be entitled to claim maintenance subject to the
conditions mentioned under sub-sections (2) and (3) of the said section. It is not necessary for us to
decide this question and hence we express no opinion on the question as to whether under section 18(1) of
the Hindu Adoption and Maintenance Act, 1956, the word "wife" includes a divorcee.
31. In the light of the above discussion, we may sum up our conclusion as under. It is not every divorced
wife who can claim maintenance under section 125(1) of the Code. A woman who has been divorced by her
husband is included in the first part of Explanation (b) to section 125(1). She can claim maintenance
under section 125(1). In this category would normally, fall the case of a Muslim woman who has been
unilaterally divorced by her husband in accordance with Muslim Personal Law. This category may also
include a woman who, under the customary law applicable to some Hindus, has been unilaterally divorced
by her husband. The second category falling under Explanation (b) of section 125(1), who can claim
maintenance under the said section, consists of a woman who has obtained divorce from her husband,
meaning thereby that the wife has initiated proceedings for obtaining divorce from the husband, as
indicated in para 24 above. In this view of the matter, we are of the opinion that the Division Bench
decision of this Court in Shardchandra Satbhai v. Indubai Satbai, 1978 Mh.L.J. 123, does not require
reconsideration and we are in agreement with the ratio of the said decision. We also approve of the
decision rendered by three learned Single Judges of this Court in the three cases discussed above (i)
Baburao Kalaskar case, decided by Puranik, J., (para 18 above), (ii) Smt. Shantabai Saitwal's case, decided
by Mehta, J., (para 19 above) and (iii) Kalidas Shinde's case, decided by Deshpande, J., (para 20 above).
We are unable to persuade ourselves to agree with the view expressed by Vaidya, J., in Smt. Sugandhabai
v. Vasant Deobhat, 1992 Cri.L.J. 1838. For the reason discussed above, we are not in agreement with the
view expressed by Vaidya, J., in the said case.
32. In the view that we have taken, the question referred for our decision must be answered against the
respondent-wife. In our view, in the facts and circumstances of the case, where the husband had obtained
a decree for restitution of conjugal rights and the wife had failed to comply with the said decree resulting
in the husband obtaining a decree for divorce, the respondent-wife does not fall in any of the two
categories contemplated by Explanation (b) to section 125(1) of the Code. In the circumstances, the
application for maintenance made by the wife was liable to be rejected as not maintainable. Since we have
come to the conclusion that the application of the respondent-wife was not maintainable in law, it is not
necessary for us to refer the case back to a learned Single Judge since nothing remains to be decided on
merits of the matter.
33. In the circumstances, rule is made absolute in terms of prayer (b). The orders passed by the two courts
granting maintenance to the wife are hereby quashed and set aside.
34. Before we part, we must record our sincere appreciation of the able assistance rendered to us by all the
learned Counsel who appeared before us.
S.S. Parkar, J.
35. I have heard the judgment delivered by my learned brother Savant, J., which just concluded. Though I
am in agreement with the reasoning as well as the conclusion arrived at therein, I would like to add few
words of my own with a view to emphasize certain aspects of the provision. In my view the controversy
regarding applicability of sub-section (4) of section 125 of Criminal Procedure Code was raised in the
matter due to the wrong assumption that every divorce woman including the one against whom a decree
of divorce has been obtained by her husband is entitled to claim maintenance under section 125(1) of the
Code by virtue of Explanation (b) thereto. The question whether defence under sub-section (4) is available
or not, which is the subject of the controversy, arises only after it is held that application for maintenance
under section 125(1) of the Code is maintainable.
36. The question which is referred to is "whether a divorcee wife has a right to claim maintenance under
section 125(1) of the Code ?" That some divorcee women are entitled to claim maintenance under section
125(1) is beyond doubt. In my opinion each and every divorced wife is not entitled to claim maintenance
under the said provision. The real question which arises in the facts of this case is whether a woman
against whom a decree of divorce has been obtained by her husband, from the Competent Court, is
entitled to claim maintenance under section 125(1) of the Code.
37. In order to find an answer to this question as reframed by me, one has to see Explanation (b) to
section 125(1) of the Code of Criminal Procedure which reads as under: -,-
"Explanation---For the purpose of this Chapter,"
(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and
has not remarried."
Explanation (b) can be divided into two parts: (i) a woman who has been divorced by her husband and (ii)
a woman who has obtained a divorce from her husband, both subject to the condition that they not
remarried. The legislature has very cautiously and guardedly used different phraseology to describe two
types of divorcee women to be included in the definition of wife". One who has been divorced by her
husband meaning woman who has been divorced unilaterally by her husband as under Muslim Personal
Law or under Customary Law which may be prevalent among some section of Hindus. In the second part
of the explanation the wording used is "or who has obtained a divorce from her husband", meaning
woman who has obtained a decree of divorce from a Competent Court of law by proving the ground which
entitles her to obtain divorce against the husband for some fault on the part of her husband. If it is the
husband who was in the wrong because of which the wife had obtained "divorce from a Court of law, there
can be no manner of doubt that, such a wife is entitled to claim maintenance. The question is then
whether a woman, who has been divorced by a decree of divorce passed by a Court of taw at the instance
of her husband, is entitled to claim maintenance under section 125 of the Code of Criminal Procedure. Her
case surely would not fall under the second limb of Explanation (b) as it is not she who has obtained a
divorce from her husband but it is the husband who is stated to have obtained divorce against her from a
Court of law.
38. The next thing which we have to consider is whether the case of such a wife or woman can fall in the
first limb of Explanation (b). Here also the answer should be in negative for the simple reason that the
wording used by the legislature is not a woman against whom a decree of divorce was obtained by her
husband but the woman who has been divorced by her husband. If the legislature had wanted to include a
woman against whom a decree of divorce is obtained by her husband, the legislature would have used the
appropriate phraseology to cover such woman as done in the second limb of the explanation to cover the
case of a woman who herself obtains divorce from her husband. The fact that different phraseology has
been used for the first limb of Explanation (b) would mean that the legislature never intended to include
woman against whom decree of divorce was obtained by her husband from a Court of law by proving some
fault on the part of the wife. The words used by the legislature in the said explanation would not justify
different interpretation. On the contrary, the words are very clear which do not include a woman whose
marriage has been dissolved by decree of divorce at the instance of her husband. If the interpretation
which was placed by some of the courts is accepted so as to include woman against whom divorce was
obtained by her husband from a Court of law, it would certainly lead to a very anomalous situation. If such
a woman against whom decree of divorce was obtained by the husband is included in the extended
definition of wife under section 125(1) of the Code of Criminal Procedure it would mean that the woman
who was wrong doer or was guilty of desertion or cruelty against her husband would be entitled to claim
maintenance after a decree of divorce is passed against her, though undisputedly, she would not be
entitled for maintenance before such divorce was granted by virtue of sub-section (4) of section 125 of the
Code of Criminal Procedure. To hold that a woman against whom a decree of divorce was obtained by the
husband is entitled for maintenance, would go not only against the express words of Explanation (b) to
section 125(1) of the Code of Criminal Procedure but also would create an anomalous situation as pointed
out above. Happily the legislature itself has taken care to see that such incongruous position does not arise
by using appropriate phraseology.
39. Mr. Kotwal's argument, however, was slightly different. He also assumed that such divorcee woman
was covered by the explanation but strongly contended that defence under sub-section (4) of section 125
must be available to him otherwise it would lead to anomalous situation. The said argument, in my view is
not available as Supreme Court in Vanmala's case, has clearly held that expression wife in sub-section (4)
does not include a divorced woman, and therefore, defence under sub-section (4) is not available to a
husband in an application for maintenance made by a divorced woman.
40. Though wording used in the explanation is 'includes', it does not in my view, make the expression wife
inclusive in the explanation. The additional categories of women sought to be covered by the explanation
are, in my view exhaustive, in the context. The word includes has been used here to mean extends to the
categories mentioned in the explanation. Even if it is assumed that the categories of divorcee women
mentioned in the explanation are inclusive then also the explanation cannot be held to cover a woman
against whom a decree of divorce has been obtained by her husband for the aforesaid incongruous
situation it may lead to. The legislature cannot be deemed to have intended to enact a law which may lead
to an anomaly as indicated above.
41. This view finds support, though indirectly from the judgment of the Supreme Court in the case of Mst.
Zohara Khatoon v. Mohd. Ibrahim, . I mst hasten to add that case pertained
to a Muslim wife and the question which we are considering in this petition was neither raised nor
decided in that matter viz., whether a woman against whom a decree of divorce has been obtained by the
husband is entitled to claim maintenance under section 125 of the Code of Criminal Procedure. However,
the observations of the Supreme Court with regard to the distinction made between two categories of
dissolution of marriages in Explanation (b) to section 125 of the Code would be of some assistance in
interpreting the said explanation. In para 27 of the said judgment, it has been observed by the Supreme
Court as follows:
"Thus, a clear distinction has been made between dissolution of marriage brought by the husband in
exercising his unilateral right to divorce and the act of the wife in obtaining a decree for the dissolution of
marriage from a Civil Court under the Act of 1939." (Dissolution of Muslim Marriages Act, 1939).
The said distinction has been further elaborated in para 28 of the said judgment when it was observed by
the Supreme Court, "thus, the two limbs of Clause (b) of the explanation to section 125(1) have separate
and different legal incidents."
42. Similarly in para 38 of the judgment, Justice Koshal in his concurring judgment observed as follows:
".....Divorce by the act of the husband is, broadly speaking, not recognised by any system of law except
that applicable to Muslims (barring variations of personal taw by customs). Members of the others main
communities inhabiting India, i.e. Hindus, Sikhs, Buddhists, Jains, Christians, etc., have perforce to go to
courts in order to obtain divorce. If Clause (b) was intended to embrace only cases of divorce brought
about by the act of the husband, its applicability would be limited, by and large, only to Muslims, which
per se appears to us to be an absurd proposition."
Thus according to Supreme Court first limb of explanation (b) would cover cases of only unilateral divorce
by husband under Muslim law and customary divorce recognised by Hindu law.
43. Present reference was made in view of the controversy which was raised in several judgments with
regard to the applicability of sub-section (4) of section 125 of the Code in the case of a woman against
whom the husband had obtained a decree of divorce, on the assumption that she was entitled to claim
maintenance under section 125(1) of the Code of Criminal Procedure. In some judgments delivered by the
Single Judge this Court has taken the view that defence available under sub-section (4) of section 125 to
husband would not be available in case of a divorcee wife. Such view has been taken in the cases
like Sushila Namdeo v. Namdeo Bahenkar, 1991 Mh.L.J. 536 and followed in Smt. Sugandhabai v. Vasant
Ganpat Deobhat, 1992(1) Mh.L.J. 427 : 1992 Cri.L.J. 1838. The contrary view, that the defence under subsection
(4) of section 125 of the Code of Criminal Procedure would be available to the husband even when
his divorcee wife applies for maintenance has been taken by the Single Judges in some cases like Smt.
Shantabai Saitwal v. Jindas Baburaa Saitwal, reported in 1985(2) Crimes 901 and in Kalidas v. Parvatibai,
. In all the above four cases where the divergent views have been taken, undisputed position in that the
wife against whom the husband had obtained decree of divorce had claimed maintenance under section
125(1) of the Code. While in the first set of cases of Sushila Namdeo and Sugandhabai, the defence under
section 125(4) that the wife was living separately without any sufficient reason has been held not be
available to the husband, assuming that such a wife was covered by the explanation, in the second set of
cases of Shantibai v. Saitwal and Kalidas v. Parvatibai, learned Single Judges had taken in view that such a
defence would be available to her husband when his divorcee wife applies for maintenance assuming
again that such a wife was covered by the explanation. As I said earlier, the controversy was raised on a
wrong assumption in all the four cases and other cases of similar type that such divorced woman was
covered by the explanation (b) to section 125(1) of the Code which assumption, according to me is not
warranted by the explanation and, therefore, the controversy raised in that behalf was futile.
44. In the recent judgment of the Supreme Court in the case of Vanmala (Smt) v. H. M. Rangnath Bhatta, ,
the Supreme Court has held that defence under sub-section (4) of section 125 is not available to the
husband when his divorcee wife claims maintenance. While interpreting sub-section (4) of section 125 of
the Code of Criminal Procedure, in para 3 of the judgment, the Supreme Court has observed as follows:
"On a plain reading of this section it seems fairly clear that the expression wife in the said sub-section (4)
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 16 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 of divorce. In our view, therefore,
this contention is not well founded."
45. In para 4 of the aforesaid judgment, the Supreme Court has referred to the decisions of various High
Courts taking similar view. None of those cases pertain to a woman against whom a decree of divorce had
been obtained by her husband and, therefore, the view taken by us does not go contrary to the decision
and the observations of the Supreme Court in the above decision. Even the judgment of the Supreme
Court in the case of Gurmit Kaur v. Surjit Singh @ Jeet Singh, reported in 1996(1) S.C.C. 390 deals with a
woman who was divorced by virtue of agreement by mutual consent between the parties and takes
precisely the same view with regard to the non-application of sub-section (4) of section 125 in the case of
divorced wife as in the case of Vanmala v. Ranganath Bhatta (supra).
46. The aforesaid observations make it clear that defence under sub-section (4) of section 125 of the Code
would not be available to the husband even if otherwise his divorced wife is entitled to claim maintenance
under the extended meaning of the expression "wife".
47. Although the opening words of the explanation purport to extend the expression "wife" to the divorcee
woman, not only for the purpose of section 125(1) but "for the purpose of i.e. entire "chapter", the same
has to be extended provided the context otherwise justifies and, therefore, the explanation has to be read
mutatis mutandis or if the context permits and that is what has been precisely done by the Supreme Court
in Vanmala's and Gurmit Kaur's case (supra). To read the expression "wife" to cover a divorcee woman for
the purpose of sub-section (4) of section 125, would be to create an inconsistency which cannot be
reconciled.
48. The view taken in the case of Shantabai v. Saitwal, 1985(2) Crimes 901 and another case of Kalidas s/
o Durgaji Shinde v. Parwatibai w/ o Kalidas Shinde, is mainly based on the decision of
the Division Bench of this Court in the case of Sharadchandra Satbhai v. Indubai Satbhai, Mh.L.J.123 : 1
M.C. 341. The view taken in Sharadchandra's case by the Division Bench cannot be said to be a wrong
view because that was not the case of a divorcee woman but the maintenance was claimed by a woman
who was still under the lawful wedlock against whom only a decree for judicial separation was obtained by
her husband. The view which we have taken here does not in any way contradict the view taken in
Sharadchandra's case. The learned Single Judges were, therefore, not justified in applying the ratio of
Sharadchandra's case in cases of divorcee women as former case pertained to the wife who was yet to be
divorced. In that view of the matter decision of the Division Bench of this Court in Sharadchandra's case
would not require reconsideration as stated in the terms of reference of this case. If the Division Bench in
Sharadchandra's case can be said to have held that defence under sub-section (4) of section 125 is
applicable in an application for maintenance by a divorced woman the same is obiter and can no longer be
a good law in view of the decision of the Supreme Court in Vanmala's case.
49. Reliance placed on the decision of the Supreme Court in Bai Tahira v. Ali Hussanin Fissalli
Chothiaa, was also not justified. The ratio of that case is not that each and every woman whether divorced
by the husband either by his unilateral act or even after having obtained divorce by the husband from a
Court of law would be entitled to claim maintenance. That was a case where the wife was divorced by her
husband by his unilateral act, the parties being Muslim and such wife is undoubtedly covered by the first
limb of explanation (b) of section 125(1). Reliance on the said decision for the view canvassed in the
reference, was therefore, not justified.
50. For the aforesaid reasons I have no manner of doubt that the woman against whom the husband has
obtained a decree of divorce is not a wife within the meaning of section 125(1) and, therefore, is not
entitled to claim maintenance.
51. This is also clear from the statement of objects of the Joint Committee of Parliament for the
introduction of explanation in the new Code whereby departure has been made from the provisions in the
old Code by extending the right to claim maintenance to divorced woman. In para 3 of the judgment of the
Division Bench in the case of Sharadchandra v. Indubai reported in 1978 Mh.L.J. 123 : 1 Matrimonial
Cases 341, the statement of objects for the introduction of explanation to section 125(1) of the Code has
been quoted from the minutes of the Joint Committee of Parliament which reads as follows:
"To protect a wife from unscrupulous husband from compelling the Magistrate to dismiss the petition for
maintenance from obtaining divorce during pendency of her petition under section 125, Criminal
Procedure Code. A divorce can be made easy under the personal law applicable to some of the
communities in India. This causes several hardships to poor section of the community who become
helpless."
52. The said statement of objects makes clear as to which divorcee women were intended to be covered by
the expression "wife" for the purpose of claiming maintenance under section 125(1) of Criminal Procedure
Code. The whole emphasis is in respect of wife who is divorced by her unscrupulous husband and a
woman under whose personal law divorce is easy which would mean unilateral divorce or divorce under
customary law, which may be resorted to by unscrupulous husbands, in order to defeat the right of wife
for maintenance, and also woman who had obtained divorce from the Court of law against her husband,
obviously not for her own wrong but for the wrong committed by her husband. The said statement of
objects does not contemplate the case of a woman against whom the decree of divorce was obtained by her
husband. In fact, when the words of the section are clear, there is no need to take aid of the statement of
objects. However, I have made reference to it only with a view to emphasize the interpretation which we
have placed on the explanation and in support of our view that such woman was not intended to be
included within the extended meaning of the expression "wife".
53. Since in this case petitioner-husband had obtained decree of divorce against respondent wife, the
latter is not entitled to claim maintenance, from and after the date of divorce. Hence this writ petition
must succeed.
54. Petition allowed.
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