maintenance after divorce but Maintain ‘Sexual Purity’ After Divorce

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05.08.2015

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)No.26 of 2015
and
M.P.No.1 of 2015

R.Mathialagan : Petitioner

Vs.

V.Ravichandrika : Respondent

PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal
Procedure, to call for the records in pursuance to the order dated
04.12.2013, passed in M.C.No.39 of 2011, passed by the learned Family Court,
Madurai and set aside the same and allow this Criminal Revision Case.
[Date of reserving the Judgment – 30.06.2015]
[Date of pronouncing the Judgment – 04.08.2015]

!For Petitioner : Mr.M.Karthikeya Venkatachalapathy

^For Respondent : Mr.Gnanasekaran
Legal Aid Counsel

:ORDER
The petitioner is the husband of the respondent herein. The marriage
between them was solemnized on 12.09.1991. They have got a male child born on
09.12.1997. Thereafter, there there was no love-lost between them. The
petitioner filed H.M.O.P.No.119 of 2007, before the Family Court, Madurai,
seeking divorce to dissolve the marriage between him and the respondent on
the ground that the respondent had deserted him voluntarily and she was not
willing to live with him, without any sufficient cause. The Trial Court, by
Judgment and Decree, dated 01.06.2010, granted divorce, accepting the plea of
the petitioner. While granting divorce, the Family Court directed the
petitioner to pay a sum of Rs.750/- per month as alimony. The said order has
become final. Subsequently, the respondent filed M.C.No.39 of 2011, before
the Family Court, Madurai, claiming maintenance, at the rate of Rs.6,000/-
per month, under Section 125 of the Code of Criminal Procedure, [for brevity,
“the Code”]. The Family Court, by order dated 04.12.2013, allowed the said
petition directing the petitioner to pay a sum of Rs.2,000/- per month to the
respondent towards her maintenance. Challenging the same, the petitioner has
come up with the present Criminal Revision Case.
2. I have heard the learned counsel appearing for the petitioner. Since
the respondent had not appeared, despite service of notice, this Court
appointed Mr.D.Gnanasekaran, as Legal Aid Counsel, to argue the case on
behalf of the respondent. I have heard him also and perused the records
carefully.

3. The main contention of the learned counsel for the petitioner is
that since there was a decree for divorce granted by the Family Court, on the
ground of desertion, the respondent is not entitled for maintenance under
sub-section 4 of Section 125 of the Code.

4. But, the learned counsel appearing for the respondent would submit
that sub-section 4 of Section 125 of the Code is applicable only to a wife
whose marriage is still in subsistence and the said provision is not
applicable to a wife whose marriage has already been dissolved. For this
proposition, the learned counsel would rely on the Judgment of the Hon’ble
Supreme Court in Rohtash Singh Vs. Ramendri [Smt] and others, reported in
2000 (3) SCC 180.

5. At the first, let us have a quick look into sub-section 4 of Section
125 of the Code, which reads as follows:-
(4) No wife shall be entitled to receive an allowance from her husband
under this section 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.

6. A perusal of the said provision would go to show that a “wife”, who
refuses to live with her husband, without any sufficient reasons, is not
entitled for maintenance under sub-section 4 of Section 125 of the Code. The
term “wife” has been defined by means of Explanation ‘b’ to sub-section 1 of
Section 125 of the Code, which states that “Wife includes a woman who has
been divorced or has obtained a divorce from her husband and has not
remarried”. Thus, for the purpose of Section sub-section 1 of Section 125 of
the Code, the term “wife” includes a divorced wife also. It is on this
premise, the learned counsel for the petitioner would submit that sub-section
4 of Section 125 of the Code is applicable to a divorced wife also. But, a
perusal of the Judgment of the Supreme Court in Rohtash Singh’s case, cited
supra, would go to show that the Hon’ble Supreme Court has found two parts in
sub-section 4 of Section 125 of the Code. The Hon’ble Supreme Court has also
held that the claim for maintenance under the first part of sub-section 4 of
Section 125 of the Code is based on the subsistence of marriage while claim
for maintenance of a divorced wife is based on the foundation provided by
Explanation (b) to sub-section (1) of Section 125 of the Code. The Hon’ble
Supreme Court further went on to say that if the divorced wife is unable to
maintain herself and if she has not remarried, she will be entitled to
maintenance allowance.

7. The Hon’ble Supreme Court has also held that a wife, after divorce,
becomes a destitute and if she cannot maintain herself or remains unmarried,
the man, who was, once, her husband, continues to be under a statutory duty
and obligation to provide maintenance to her. The Hon’ble Supreme Court has
further held that so far as the wife whose marriage is still in subsistence,
if she refuses to live with her husband, which is her matrimonial obligation,
then, she is not entitled for maintenance. To that extent, it is crystal
clear that when sub-section 4 of Section 125 of the Code is applicable to a
wife whose marriage is in subsistence. But, for a divorced wife, there is no
moral or statutory obligation to live with her husband. Therefore, for a
divorced wife to claim maintenance under Section 125 of the Code, even if the
divorce is on the ground of desertion, it is not a bar for her to claim
maintenance under Section 125 of the Code, as sub-section 4 of Section 125 of
the Code is not applicable.

8. In Rohtash Singh’s, in Paragraph No.11, the Hon’ble Supreme Court
has held as follows:-
” 10. Claim for maintenance under the first part of Section 125 CrPC is
based on the subsistence of marriage while claim for maintenance of a
divorced wife is based on the foundation provided by Explanation (b) to sub-
section (1) of Section 125 CrPC. If the divorced wife is unable to maintain
herself and if she has not remarried, she will be entitled to maintenance
allowance. The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of desertion
by the wife but she was held entitled to maintenance allowance as a divorced
wife under Section 125 CrPC and the fact that she had deserted her husband
and on that basis a decree for divorce was passed against her was not treated
as a bar to her claim for maintenance as a divorced wife. (See: Sukumar
Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case,
has taken a similar view. We approve these decisions as they represent the
correct legal position.
11. Learned counsel for the petitioner then submitted that once a
decree for divorce was passed against the respondent and marital relations
between the petitioner and the respondent came to an end, the mutual rights,
duties and obligations should also come to an end. He pleaded that in this
situation, the obligation of the petitioner to maintain a woman with whom all
relations came to an end should also be treated to have come to an end. This
plea, as we have already indicated above, cannot be accepted as 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 a 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 obligation to provide maintenance to her”.

9. The above conclusion of the Hon’ble Supreme Court is founded on the
ground that so long as the marriage is in subsistence, since there is a
statutory obligation for the wife to live with her husband and since she
refuses to live with the husband, without assigning any reason, she is not
entitled for maintenance under Section 125 of the Code. The Hon’ble Supreme
Court has further clarified that after the decree is passed for divorce on
the ground of desertion, since there is no legal obligation for the wife to
live with the husband, sub-section 4 of Section 125 of the Code is not
applicable and therefore, for the period commencing from the date of divorce,
she is not entitled for divorce and for the period from preceding decree for
divorce, she is not entitled for maintenance. In the instant case, the
divorce was granted on 11.06.2010, whereas the petition for maintenance was
filed only on 30.05.2011. Therefore, from 30.05.2011 onwards, she would be
entitled for maintenance under Section 125 of the Code, though the marriage
was dissolved by means of decree for divorce on the ground of desertion by
the respondent.

10. Now, turning to the quantum of maintenance ordered already, as per
the order of the Family Court, the petitioner has to pay a sum of Rs.750/-.
The petitioner has got no fixed income. He is only an Astrologer by
profession. The Lower Court has estimated his normal income at Rs.10,000/-
per month. In my considered view, in the absence of any evidence to prove the
income of the petitioner, simply by taking into account the fact that the
petitioner is an Astrologer, the Lower Court ought not to have arrived at a
conclusion that his monthly income would have been Rs.10,000/-. Going by the
normal earnings of a man of his stature, at the most, he can be directed to
pay a sum of Rs.1,000/- per month as maintenance, in addition to a sum of
Rs.750/-, which has already been ordered by the Family Court, Madurai, in
H.M.O.P.No.119 of 2007. To that extent, the order of the Lower Court deserves
to be modified.

11. In the result, the Criminal Revision Case is partly allowed, the
impugned order dated 04.12.2013, made in M.C.No.39 of 2011, passed by the
learned Family Court, Madurai, is modified and the petitioner is directed to
pay a sum of Rs.1,000/- per month towards maintenance of the respondent from
the date of petition, in addition to a sum of Rs.750/-, which has already
been ordered to be paid by the petitioner in H.M.O.P.No.119 of 2007.
Consequently, connected Miscellaneous Petition is closed. Before parting with
this case, I record my appreciation for the service rendered by
Mr.Gnanasekaran. The Legal Services Authority is directed to pay remuneration
to Mr.Gnanasekaran, the learned counsel, who has been appointed as legal aid
counsel to argue the case on behalf of the respondent.

To

1.The Family Court, Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.