LexROHTASH SINGH versus SMT. RAMENDRI AND ORS.
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A B c D E F G H ROHTASH SINGH v. SMT. RAMENDRI AND ORS. MARCH 2, 2000 [S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] Code of Criminal Procedure, 1973 : Section 125(4)-Scope of Maintenance_-::-Desertion by wife-Decree of divorce obtained by hus- band on the ground of desertion-Held, even a decree obtained by husband is no bar to wife for claim of maintenance as a divorced wife-But wife held not entitled to maintenance for any period prior to the decree of dissolution. The petitioner-husband obtained a decree of divorce from the Fam- ily Court, Meerut on the ground of desertion by the respondent-wife. An application filed by the respondent-wife, during the pendency of suit for divorce, under Section 125 of the Code of Criminal Procedure, 1973 was allowed by the Family Court in spite of the fact that the decree of divorce in favour of the respondent was brought to the notice of the Family Court. This maintenance order was unsuccessfully challenged by the petitioner in revision before the High Court. Before this Court it was contended on behalf of the husband that a decree for divorce having been passed on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of Sub-section ( 4) of Section 125 Cr.P.C. Dismissing the petition, this Court HELD : 1. A woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as divorced• woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and 58 - ROHTASH S)NGH v. SMT. REMENDRI obligation to provide maintenance to her. [63-F-G] 59 2. Under Section 125(4) of the Code of Criminal Procedure, 1973 a wife is not entitled to any maintenance allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. AH the circumstances contempl~ted by Sub-section (4) of Section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obliga- tions. She cannot, without any sufficient reason, refuse to live with her husband. [61-C-D; G] 3. In the instant case, the respondent is a divorced wife. The mar- riage ties between the parties do not subsist. The decree for divorce was passed and since then, she is under no obligation to live with the petitioner. But though the Marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the re- spondent continues to be "wife" within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) for the limited purpose of claiming Maintenance Allowance from her ex-husband. Under Explana- tion (b) to Sub-section (1) of Section 125 Cr.P.C. if the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. However, the respondent-wife is not entitled to maintenance for any period prior to the passing of the decree. [62-C-F; 63-B-C; 64-A] Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others, AIR (1978) SC 1807, referred to. Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl.L.J. 36, approved. CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (Crl.) No. 2763 OF 1999. From the Judgment and Order dated 23.3.99 of the Allahabad High Court in Crl. R. No. 432 of 1997. Mrs. Rani Chhabra for the Petitioner. A B c D E F G H 60 SUPREME COURT REPORTS (2000) 2 S.C.R. A The Judgment of the Court was delivered by S. SAGHIR AHMAD, J. This Special Leave Petition was dismissed by us on 10.9.1999. We, hereinbelow, give our reasons for dimissing the Special Leave Petition. B The petitioner who is a member of the Indian Army was married with the respondent on 10th of May, 1990. Since the petitioner was posted away from his home, he left the respondent with his parents living
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