HIGH COURT OF BOMBAY
Criminal Application No. 3237 of 1976
Bench: JUSTICE HIGH COURT OF BOMBAY
Sharadchandra Chandrashekhar Satbhai
Indubai Sharad Satbhai On 25 August 1977
1. The petitioner is the husband of respondent No. Indubai. Indubai filed an application under Section 125, Criminal Procedure Code 1973, for maintenance for herself and two minor children. Each of the minors was awarded allowance of Rs. 30 per month. But as regards Indubai’s own maintenance, the application was rejected. Being aggrieved of the said order, Indubai went in revision. The Revisional Court by its order dated September 30, 1976 granted maintenance to Indubai at the rate of Rs. 60 per month from October 1, 1976. The husband seeks to quash this order under Article 227 of the Constitution.
2. The few facts are that the petitioner and Indubai were married in January 1963. At the time of marriage, the petitioner was serving in the Police Department of Madhya Pradesh. The matrimonial home of the parties was at Indore upto April 1969. From the wedlock, a daughter Bhatabai alias Damayanti and a son Raju were born. On or about April 14, 1969, Indubai left Indore with the two minor children without informing the petitioner. The petitioner made several attempts by letters and personal visits to Dhule to bring back Indubai, but she refused to go back to the petitioner and thus continued to stay away from the matrimonial home. In these circumstances, the petitioner filed Civil Suit No. 10 of 1971 in the Court of the District Judge at Indore for a decree for judicial separation on the ground that Indubai had deserted the petitioner for a continuous period of more than two years. That petition was decided ex parte as Indubai did not choose to enter appearance. On the evidence, the learned District Judge, Indore, held that Indubai had wilfully deserted the petitioner for a continuous period of over two years before the presentation of the petition for judicial separation and accordingly a decree for judicial separation was passed on August 4, 1973. In 1974, Indubai filed the present application. Her claim for maintenance was rejected by the learned Judicial Magistrate, First Class, Dhule, as, in his view, he could not sit in judgment over the order of learned District Judge of Indore holding that Indubai had deserted the petitioner, and, therefore, she was not entitled to receive monthly allowance in summary proceedings under Section 125 of the Criminal Procedure Code, 1973.
3. The Revisional Court in allowing the application was guided by the observations of the Andhra Pradesh High Court in the case of K. Raza Khan v. Mumtaz Khatoon MANU/AP/0211/1975. The view expressed in that case is that under Section 125(1) even a woman who has been divorced by her husband before April 1, 1974 can claim maintenance, provided the other conditions are satisfied. It seems that the Revisional Court felt that if the benefit of Section 125(1) was available to a woman who has been divorced from her husband, why a woman against whom there is only an order of judicial separation should not get the same benefit? In this connection, the learned Additional Sessions Judge infused his consideration by referring to the minutes of the Joint Committee of Parliament which had observed that the object of extending the benefit of Section 125(1) is “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.” According to the learned Judge, the Magistrate cannot reject the application of the wife for maintenance simply because the husband has produced a decree for judicial separation. Thus, ignoring the decree for judicial separation on the ground of desertion for a continuous period of over two years, the learned Judge accepted lndubai’s testimony and allowed the revision application.
4. Mr. Khare, learned Counsel for the petitioner, challenges the validity of the said order on the ground that Indubai had refused to live with the petitioner without any sufficient reason and the matter was concluded between the parties in view of the decree for judicial separation.
5. In order to appreciate this contention, the relevant provisions of law are these. Section 10(1)(a) and the Explanation thereto of the Hindu Marriage Act, 1955, is in the following terms:
10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-
(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or…
Explanation.-In this section, the expression ‘desertion’, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilfully neglect of the petitioner by the other party to the marriage.
6. Section 125(1)(a) and Explanation (b) thereto and Sub-section (4) of Section 125 of Criminal Procedure Code, 1973, are as follows:
125. (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or…
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 purposes of this Chapter,-
(b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(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….
7. In the present case, the parties are governed by the Hindu Marriage Act, 1955. Judicial separation is available on six grounds, one of them being desertion within the meaning of Clause (a) of Sub-section (1) of Section 10. Desertion takes place when one spouse leaves the other without reasonable cause and without the consent or against the wish of the other spouse. “Desertion” has been given wider meaning by including “wilfully neglect” on the part of the spouse against whom petition is filed. It is not necessary to familiarize ourselves with the effect of such a decree. Suffice it to note that this can become the basis for the dissolution of the marriage by a decree of divorce if the conditions laid down in Section 13(1A) of the Hindu Marriage Act, 1955, are fulfilled. The decree for judicial separation in favour of a husband does not absolve him from his obligation to provide for the maintenance of his wife. The civil Court is empowered under Section 25 of the Hindu Marriage Act, 1955, to fix adequate payment by way of gross sum or monthly or periodical sum and secure it by a charge on the immovable property of the other. In fact, Section 25 is in wider terms. It not only speaks of maintenance but also of ‘support’ which means providing with necessities as well.
8. It is, however, open to a wife who is unable to maintain herself and her husband 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 had 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 (4) which also governs Sub-section (1) 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.
9. Mr. Pradhan, learned Counsel appearing for Indubai, argued that the decree for judicial separation dated August 4, 1973 is an ex pane decree and was obtained without service of notice to her, The learned Counsel, however, fairly conceded that it was open to Indubai to have taken proceedings to set aside the ex pane decree at least when she came to know of the same in the present proceedings. Mr. Khare stated that till today the petitioner has not been served with any notice for setting aside the said ex parte decree. Therefore, the decree stands. It may be pointed out that Sub-section (2) of Section 10 of the Hindu Marriage Act, 1955, makes a special provision for rescinding a decree for judicial separation. Thus, it may be open to Indubai to take recourse to this remedy.
10. In our opinion, the impugned order is passed by the learned Additional Sessions Judge in excess of his jurisdiction and, therefore the same is liable to be set aside.
11. In the result, the impugned order dated September 30, 1976 passed by the learned Additional Sessions Judge, Dhule, is quashed. Rule made absolute accordingly. No order as to costs..