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No Maintenance in case of Mutual Consent Divorce

HIGH COURT OF RAJASTHAN

Bench: JUSTICE R.S. Chauhan

Shashi alias Mala
vs.
State and Anr. On 27 March 2006

JUDGEMENT

1. Both these Misc. Petitions arise out of impugned order dated 5.8.02 passed by the Special Judge (SC/ST Prevention of Atrocities) Cases Addl. Sessions Judge, Alwar whereby he has directed the Family Court to given an opportunity to both the husband the wife with regard to quantum of their salary and economic condition and to decide the quantum of the maintenance thereafter. Since both the petitions arise out of the same impugned order, they are being decided by this common order.

2. The brief facts of the case are that the petitioner, Neeraj Sharma, was married to the respondent No. 1, Smt. Shashi @ Mala, on 14.2.94 in accordance with the Hindu rites. Subsequently, a daughter, respondent No. 2, was born to the couple. However, it seems that differences arose between the couple. Eventually, the wife left the matrimonial home and went back to her parental place. Since she was unable to support herself and the child, she filed an application under Section 125 of the Criminal Procedure Code (henceforth to be referred to as ‘the Code” for short). The Addl. Chief Judicial Magistrate No. 2, Alwar issued notice to the husband Neeraj Sharma, who subsequently filed his reply. In his reply he admitted the factum of the marriage and the birth of the daughter, but claimed that the husband and wife were divorced by mutual consent vide decree dated 22.5.96. He, therefore, claimed that the wife was disentitled from claiming any maintenance under the provisions of Section 125(4) of the Code. However, in order to prove her case the wife examined there self and two other witnesses. In order to substantiate his case, the husband examined himself as a witness. After examining the oral testimony, vide order dated 8.8.98, the learned Chief Judicial Magistrate was pleased to direct the petitioner to pay a maintenance of Rs. 2,000/- to the wife and Rs. 2,000/- to the daughter. Since the petitioner was aggrieved by the said order, he filed a revision-petition before the District Sessions Judge. The said revision petition was eventually transferred to the Special Judge (SC ST Prevention of Atrocities) Cases Addl. Sessions Judge, Alwar. Vide order dated 5.8.02, the learned Judge remanded the case back to the Court of the Addl. Chief Judicial Magistrate and directed him to give an opportunity to both the parties to adduce evidence with regard to their salary/pay and economic conditions and to pass the order with regard to maintenance thereafter. The learned judge also directed the petitioner to continue to pay the maintenance as directed by the learned Magistrate during the pendency of the case in the Court of Addl. Chief Judicial Magistrate. Since both the parties are aggrieved by the said order, they have filed the above mentioned petitions before us.

3. Mr. Harendra Singh, learned Counsel for the petitioner, has argued that according to Section 125(4) in case a wife is divorced on the ground of mutual consent, she becomes disentitled to any maintenance. Therefore, according to him, since a divorce decree on the ground of mutual consent was passed by the Family Court, wife cannot claim any maintenance from the husband. He has further argued that while entering into a divorce by mutual consent, the wife had already received Rs. 20,000/- by way of permanent alimony and had taken the entire ‘Stridhan’ with her. Once the permanent alimony is paid, thereafter the husband need not pay any maintenance to the wife. He has further contended that the wife is already employed as a Teacher Gr. III and is earning sufficient amount to maintain herself and the child. Hence, the petitioner need not support the wife.

4. On the other hand, Mr. Anoop Dhand, the learned Counsel for the respondent-wife, has argued that the divorce by mutual consent was procured by playing fraud upon the Court. According to him the wife never appeared before the Family Court, never signed the application for mutual consent. He has further stated that the said divorce decree is under challenge before the appropriate Court. Therefore, the said divorce decree which was procured-through fraud cannot disentitle the wife from her legitimate maintenance. According to him the wife is totally dependent on her parents and is unable to support herself and the child. The learned Counsel has denied the factum of the wife being employed as a Teacher Gr. III. Moreover, While supporting the petition filed on behalf of the wife; the learned Counsel has argued that there was no necessity to remand the case back to the Court of the Addl. Chief Judicial Magistrate as under Section 391 of the Code, the Appellant Court has sufficient power to take further evidence and to examine the same. Therefore, the impugned order deserves to be set aside.

5. We have heard the learned Counsel for the parties and have perused the impugned orders.

6. Section 125(1) of the Code reads as under:

125. Order for maintenance of wives, children and parents, – (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.

7. Explanation B defines the word “wife” as “Wife” includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Sub-section (4) reads as under-

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.
8. A holistic reading of the provisions would clearly reveal that in case a wife is divorced on the ground of mutual consent, then she is disentitled from claiming any maintenance or interim maintenance and expenses of proceedings from the husband. Unfortunately the said provision has not been noticed by the learned Magistrate while passing the order dated 1.2.02. In the said order he has observed that a divorce on the ground of mutual consent would not disentitle the wife from claiming the maintenance. Such an observation is clearly against the provisions of Section 125(4) of the Code. However, as the divorce decree on the ground of mutual consent is under challenge, it is for the learned Magistrate to consider the effect of such challenge upon the maintainability or non-maintainability of the application under Section 125 of the Code.

9. There is certainly a dispute with regard to the fact whether wife is employed or not and about the quantum of salary, if any, being received by her. There is also a dispute about the amount of salary being received by the husband. Therefore, the learned Judge had rightly remanded the case back to the learned Judicial Magistrate to decide the quantum of the salary being earned by both the parties. Hence, there is nothing illegal about the order dated 5.8.2002.

10. In the result we find no merit in both the petitions. They are, therefore, dismissed. However, we direct the learned Judicial Magistrate to decide the case keeping in view the provisions of Section 125(4) of the Code and to pass his judgment within a period of two months from the date of the receipt of this order. A copy of this order shall be sent immediately to the concerned Court at Alwar. The petitioner husband is directed to continue to make the payment of maintenance to the wife during the course of the proceedings before the learned Judicial Magistrate.

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