Section 125 Cr.P.C.; Rajendrabhai Virjibhai Mavadia Vs. State [Gujarat High Court, 05-08-2016]

Criminal P.C. 1973 – S. 125 – Maintenance to wife – compromise between the parties – agreement for a meager amount as a full and final settlement – not a registered document – Application filed after a period of 20 years – wife has not re-married – seriously disputed the agreement – husband has driven out the wife and the children which has necessitated the wife to claim maintenance – Whether wife is entitled to seek a maintenance – Held, a woman who is a wife as per the explanation of Section 125 continues to be the wife even if divorced and not remarried and she cannot be denied the maintenance under Section 125. A right of a wife who is in destitute condition to get the maintenance from her husband is always available to her. Any compromise or a condition contained in the agreement held to be against the public policy and not valid.

# Divorced Wife

Constitution of India – Art. 226 & 227 – Difference between – Jurisdiction of High Court – Explained.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

Date :5/08/2016

SPECIAL CRIMINAL APPLICATION NO. 2267 of 2011

RAJENDRABHAI VIRJIBHAI MAVADIA….Applicant(s) Versus STATE OF GUJARAT & 3….Respondent(s)

Appearance: MR SHAKEEL A QURESHI, ADVOCATE for the Applicant(s) No. 1 MR VH KANARA, ADVOCATE for the Respondent(s) No. 2 – 4

JUDGMENT

1. Present petition is filed for the purpose of seeking quashing and setting aside the judgment and order dated 30.7.2012 passed in Criminal Misc. Application No.224 of 2007 by the learned JMFC, Mangrol, as also the judgment dated 21.7.2011 passed by the learned Additional Sessions Judge, Junagadh in Criminal Revision Application No.99 of 2010.

2. While challenging the said concurrent decisions, the petitioner has brought the case on premise that on 13.4.2007, marriage between the petitioner and respondent No.2 came to an end by virtue of execution of divorce deed. It was the case of the petitioner that said deed contains full and final compensation which has been arrived at and paid by the petitioner. It has been stated that on 27.11.2007, immediately thereafter by suppressing the fact of divorce deed, an application for seeking maintenance came to be filed by respondent No.2. On 10.6.2010, vide Exh.22 the petitioner has filed detailed reply before the learned Magistrate and by opposing the application for maintenance, it has been stated that overall settlement had already taken place wherein, as a full and final settlement amount has already been determined not only with respect to the petitioner but for children as well and therefore, contended before the Court below that respondent No.2 is not entitled to seek any maintenance further. The petitioner’s case is that despite the aforesaid fact having been brought to the notice of the learned Magistrate, vide order dated 30.7.2010, the learned Magistrate was pleased to order an amount of maintenance and ordered to pay Rs.3000/- per month to respondent No.1, namely, wife and Rs.2000/- p.m. for original applicant No.2 – minor Surbhi and also amount of Rs.2000/- is ordered to be paid to original applicant No.3, who is also a minor son and therefore, has awarded a total sum of Rs.7000/- per month from the date of application to be paid continuously and Rs.500/- is awarded by way of cost while passing said order.

3. It is this judgment and order dated 30.7.2010 was made the subject matter of Criminal Revision Application No.99 of 2010 filed before the learned Sessions Judge, Junagadh, inter- alia, reiterating that by virtue of divorce deed, every right is extinguished by way of volition and therefore, none of the applicants are entitled to seek any maintenance. The detailed adjudication has already been taken place by leading evidence before the learned Magistrate and therefore, in Revision the petitioner has contended that gross material irregularity is committed and requested the learned Sessions Judge to set aside the order passed by the learned Magistrate in exercise of revisional jurisdiction. The said Revision Application came up for consideration before the learned 6th Ad-hoc Additional Sessions Judge, Junagadh in the month of July,2011 and vide order dated 21.7.2011, said Revision Application came to be dismissed and by virtue of which, the order passed by the learned Magistrate came to be confirmed. It is this order as also the order of learned Magistrate are made the subject matter of the present petition by invoking jurisdiction of this Court under Article 227 of the Constitution of India and in the background of this fact, the present petition is taken up for hearing.

4. Mr.Shakeel Qureshi, learned counsel appearing on behalf of the petitioner – husband has contended that both the courts below have grossly erred in ignoring the material aspect of the matter and has committed an error. It has been contended by learned counsel for the petitioner that the divorce has already taken place on 13.4.2007 and the said agreement came to be deduced in writing which is signed by the respondent for herself as well as on behalf of the children as guardian of them and has readily agreed to arrive at a figure which is mentioned in the agreement as a full and final settlement and therefore, now to turn around from the said agreement, is nothing but an abuse of process of law by the respondents. It has also been contended by learned counsel for the petitioner that said agreement was very much part of the proceedings before the learned Magistrate wherein, the respondent – wife has not disputed her signature nor has disputed the factum of separation. The marriage in the instant case solemnized on 24.5.1991 and since the marriage itself has been broken down and as a part of full and final settlement, amount is secured by the respondents, counsel for the petitioner has urged the Court not to allow the respondents to turn around from the binding given in the aforesaid writing, namely, the agreement.

4.1 Learned counsel for the petitioner has submitted that for the purpose of setting aside an agreement, a civil suit also came to be filed by respondent – wife which has been dismissed by the civil court. The learned counsel candidly submitted that no doubt, the appeal against the said dismissal of the suit is pending for further adjudication but, has contended that no stay is granted by the appellate court. It has also been contended that the learned Magistrate has committed a material irregularity in ignoring the material on record which is prima facie established the fact as mentioned as above and therefore, that material irregularity in exercising jurisdiction ought to have been corrected by the revisional authority, namely, revisional court. Learned counsel further submitted that even the error which has been committed by the learned Magistrate is reiterated and repeated by the revisional court as well and therefore, both the orders passed by the courts below are not tenable in the eye of law, based upon material irregularity and the finding arrived at being perverse, deserves to be corrected by allowing the petition.

4.2 Learned counsel submitted that respondent – wife with the children has long back separated herself from the petitioner in April,2007 and thereafter, there is no relationship of husband and wife subsisting and therefore, in the absence of that, allowing the maintenance to the wife is impermissible in law. To substantiate this contention, learned counsel for the petitioner is relying upon the decision delivered by the Punjab and Haryana High Court in case of

# Puran Chand V/s. Palo, reported in 1986 (2) Crimes 177

wherein, in almost similar situation – counsel submitted – no maintenance is permissible to a ex-wife. Learned counsel for the petitioner has drawn the attention of this Court to the documents whereby, the payment of amount being determined in the agreement is realized by the respondent and has also drawn specific attention to the reply which has been filed by the petitioner in the court below and contended that the amount which has been determined is already encashed by the respondent and therefore, respondent – wife is not entitled to turn around from the said stand and claim further amount of any nature. Learned counsel has further drawn attention of this Court to a decision of this Court rendered in Criminal Revision Application No.674 of 2014 delivered on 5.8.2015 in which also, the Court has taken such kind of circumstance has ordered that wife is not entitled to claim any maintenance and thereby, learned counsel submitted that the orders passed by the courts below are required to be set aside. No further submissions are made by learned counsel for the petitioner.

5. As against this, Mr.Pravin Patel, learned counsel for Mr.V.H.Kanara, learned counsel appearing for respondent Nos.2, 3 and 4 has contended that both the courts below have rightly exercised the discretion and have confirmed the order of maintenance and there is no need to dislodge the finding which has been arrived at in the background of facts and circumstance of the case. Learned counsel also contended that basically present petition is directed against the concurrent decisions delivered by the courts below and therefore, looking to the scope of Article 227 of the Constitution of India, such concurrent decisions may not be allowed to be disturbed at the instance of the petitioner. It has also been contended that the amount which has been mentioned in the agreement which is in dispute is thoroughly inadequate and not proportionate and it is a settled position of law that even if the some amount at the relevant time is agreed upon, it is always open for the respondent – wife in the change of circumstance to claim the amount of maintenance and there is no law which prohibits the wife to seek a review by filing appropriate proceedings. It is also contended by the learned counsel for the respondents that this agreement of divorce is merely on a stamp paper and not even registered one and same is not culminated finally into a lawful decree of a competent court and therefore, learned counsel submitted that much importance may not be given to that piece of paper wherein, the divorce is said to have taken place. Learned counsel submitted that this very disputed document is the subject matter of a civil suit filed by the respondent – wife and of course, the suit came to be dismissed but, an appeal against the same is very much pending before the court below and the appellate forum is seized with the issue related to this deed of divorce and therefore, learned counsel submitted that if ultimately the appeal is allowed and the agreement is set aside then, irreversible situation will be created for the respondent if these orders impugned in the petition are quashed and set aside and therefore, to avoid that eventuality, learned counsel for the respondents submitted that not to interfere with in extraordinary jurisdiction of this Court.

5.1 Learned counsel for the respondents submitted that the amount which has been determined of Rs.50,000/- is a very meager amount and can never be said to be a proportionate or adequate amount and even for the children also Rs.1 one lac each is not a possible amount to meet with the present demand of dearness and therefore, learned counsel submitted that respondent – wife has rightly claimed the amount of maintenance by filing an application and has also contended that the courts below have rightly exercised their due discretion vested in the statute. Learned counsel submitted that simply because an agreement came to be entered into assuming without admitting but the said document cannot be said to be a waiver of right for all time to come on behalf of the respondents to claim any amount of maintenance. Learned counsel further submitted that till date, wife has not remarried and so long as she is holding the status of divorced wife, she can claim maintenance as a matter of right and therefore, in the present days of acute dearness, the courts below are justified in awarding the amount of maintenance which has already reflected in the order and therefore, requested the Court not to disturb the orders passed by the courts below.

6. Mr.K.P.Raval, learned APP for the State has supported the case of the respondents and pointed out to the Court that this petition is directed against the concurrent decisions and therefore, extraordinary jurisdiction may not be exercised and has also contended that construction of a document in question may not be allowed to be a subject matter of exercise of extraordinary jurisdiction and thereby, opposed the petition.

7. Having heard the learned counsels appearing for the parties and having gone through the material on record and having perused the orders and independently assessing the situation, following facts are emerging at the threshold (i) that the respondent – wife has not re-married (ii) respondent -wife has seriously disputed the agreement in question i.e. agreement dated 13.4.2007 and has filed a suit and against the order of the suit, she has also filed a substantive appeal which is at present pending before the court below (iii) it is also revealed from the material on record that the document in question dated 13.4.2007 is not a registered document. But, at the same time, it is not culminated into final decree of a competent court and therefore, no decree or divorce is available on record (iv) the amount which has been determined also prima facie appearing to be a meager amount and the wordings of the document in question are such that the same might have been in compelling circumstance accepted. With the result, the respondent – wife was dragged to civil litigation for challenging the said document.

8. From the aforesaid background of the facts and circumstance, if the detail order which has been passed by the Magistrate to be looked into wherein, a categorical conclusion is arrived at that respondent – wife is entitled to seek a maintenance and this conclusion is based upon the detail examination of document in question as well as based upon the evidence in detail adduced by the respective side. It has also been concluded by the court below i.e. Magistrate that looking to the cross-examination, it is revealed that the husband has driven out the wife and the children which has necessitated the wife to claim maintenance. Detailed narration of evidence and analysis is made while passing an order on 30.4.2010 by the Magistrate and the said finding of fact based upon material on record came to be confirmed by the Sessions Judge in exercise of revisional jurisdiction. It is settled position of law that even if another view is possible then the revisional forum may not substitute the finding of fact based upon material on record arrived at by the court below and therefore, prima facie, it appears that the revisional court has also exercised the jurisdiction and discretion rightly in confirming the order passed by the Magistrate.

9. Before dealing with the contentions raised by the learned counsel for the respective parties, one thing is worth to be noted that the petition on hand is basically a petition under Article 227 of the Constitution of India wherein, challenge is made to concurrent decisions. The law is well settled by series of decisions on exercise of jurisdiction under Article 227 of the Constitution of India. In brief, several decisions have taken the view that against the concurrent decisions, unless so perverse, normally the extraordinary jurisdiction may not be exercised. Further, Article 227 of the Constitution of India is basically a supervisory jurisdiction and the Court has to see only that whether the courts below have exercised their discretion within the bounds of their authority or not. Unless and until patent illegality is committed, no exercise of extraordinary jurisdiction is to be undertaken. There are large number of cases on these issues. However, to pinpoint few would suffice to deal with the case on hand. Few parameters are prescribed by the Hon’ble Apex Court in a decision in case of

# Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374

which is worth to be noted. Relevant Para.6 and 7 of the said decision are quoted as under :

“6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court’s jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in

# Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675

After considering various facets of the issue,the two Judge Bench culled out the following principles:

“(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction – by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.”

7. The same question was considered by another Bench in

# Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, (2010) 8 SCC 329

and it was held:

“(a) A petition under Article 226 of the Constitution is different from a petition under Article 227.The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”.

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.”

10. In a decision of the Hon’ble Apex Court in case of

# State of Haryana and Ors. V/s. Manoj Kumar, reported in (2010) 4 SCC 350

wherein, the Hon’ble Apex Court has propounded a proposition that extraordinary jurisdiction normally not to be exercised when the Court is dealing with the concurrent finding of fact or the decision unless it is so perverse or patently illegal. Relevant Para.29 and 34 are worth to be taken note of.

“29. We have heard the learned counsel for the parties at length. We are clearly of the opinion that the High Court, in the impugned judgment, has erred in interfering with the concurrent findings of fact of the courts below under its limited jurisdiction under Article 227 of the Constitution. The High Court erroneously observed that the “the authenticity of the decree passed by the court cannot be questioned. Therefore, the genuineness of the sale price has to be presumed.” This finding of the High Court cannot be sustained. It would have far reaching ramifications and consequences. If the genuineness of the sale price entered into by the buyer and the seller cannot be questioned, then in majority of the cases it is unlikely that the State would ever receive the stamp duty according to the circle rate or the collector rate. The approach of the High Court is totally unrealistic.

34. This order was upheld by the Commissioner. The High Court while exercising its jurisdiction under Article 227 has set aside the orders passed by the District Collector, Faridabad and upheld by the Commissioner, Gurgaon without any basis or rationale. Apart from the jurisdiction, even what is factually stated in the order of the District Collector, Faridabad as upheld by the Commissioner, Gurgaon is unexceptionable and any interference was totally unwarranted.”

11. In another decision in case of

# S.J. Ebenezer V/s. Velayudhan, reported in AIR 1998 SC 746

the Apex Court has, in Para.16, propounded that even if another view is possible, the same may not be allowed to be substituted.

12. In another decision in case of

# Mohd. Yunus V/s. Mohd. Mustaqim and Ors., reported in AIR 1984 SC 38

wherein, the Hon’ble Apex Court has propounded that even if there is an error of law, the same cannot be corrected in exercise of jurisdiction under Article 227 of the Constitution of India. Relevant Para.7 of the said decision is reproduced as under :

“7. The supervisory jurisdiction conferred on the High Courts udder Art. 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re- weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.”

13. Therefore, these are the decision in which the Hon’ble Apex Court has laid down a proposition that unless and until there is patent irregularity material in nature in exercising jurisdiction and the findings are so perverse, only in those circumstances, the jurisdiction under Article 227 of the Constitution of India can be exercised and therefore, keeping this proposition of law in mind, as stated hereinabove, the case is not that of a nature which may allow the present Court to deviate from the said proposition of law and therefore, this Court is of the opinion that the orders passed by the courts below are not required to be quashed and set aside, more particularly in view of the fact that respondent – wife has not remarried and a substantive appeal proceedings are still pending questioning the document in controversy and prima facie, the figure which has been mentioned in the document appearing to be too meager to justify a permanent alimony amount. An evaluation of the entire evidence as a whole even independently from what has been assessed by the courts below, this Court is of the opinion that in the background of present facts and circumstance, the orders are not required to be disturbed, more particularly in exercise of extraordinary jurisdiction.

14. Now, dealing with the decisions which have been cited by the respective counsel and having gone through, it appears that the same are to be analyzed so as to see that no party to the petition left with the feeling that decisions, though relied upon, have not been applied in true perspective and therefore, keeping this fact in mind, first of all, I may consider the decisions relied upon by learned counsel appearing for the petitioner in case of Puram Chand (Supra). In that case, the Punjab & Haryana High Court, in a brief order, relying upon the divorce deed executed between the parties as a part of custom, found that having agreed upon in the said customary, divorced wife is not entitled to claim any maintenance and in that background, the Court has passed the order.

15. The present case on hand is governed by the relationship of husband and wife under the provisions of the Hindu Marriage Act and there is nothing on record which has been submitted that the customary divorce is permissible and undisputedly, the unregistered deeds on paper is treated as a lawful divorce by the petitioner and contended that respondent – wife is not entitled to claim maintenance by virtue of that deed. A fact is to be mentioned here that this very document of divorce is subject matter of an appeal which is yet pending before the appropriate appellate forum awaiting final out come and therefore, this scenario of the present is quite different from what has been appearing in the case of Puram Chand (Supra). From the bare reading of said brief order, it would appear that divorce deed Exh.1 of that particular case was not appearing to be a subject matter of challenge anywhere and in that circumstance, the High Court has delivered a brief order which may not be helpful to the petitioner in the present case.

16. The next decision which has been cited by learned counsel for the petitioner is of a coordinate bench rendered in CR.RA No.674 of 2014 delivered on 5.8.2015 and relying upon the same, learned counsel submitted that in the said case, this Court was dealing with a situation where Section 125 application came to be filed after almost a period of 20 years and in that case, it is appearing that the Court was concerned with a decree of divorce and therefore, in that set of circumstance, the Court was of the opinion that wife if for a long time is unable to make any maintenance application then, per-se would not entitle to claim maintenance and more particularly in that case, there was an exchange of land in lieu of permanent maintenance which had already been transferred and thereafter, after a pretty long period, an application came to be filed and therefore, the background of that fact is quite distinct from the set of circumstance appearing in the present case and therefore, in humble opinion of this Court, said decision delivered on 5.8.2015 is not applicable to the facts of the case on hand.

17. As against this, Mr.Patel, learned counsel appearing on behalf of respondent Nos.2 and 3 has submitted that divorced wife continues to enjoy status of wife for the purpose of claiming maintenance and relied upon the decision in case of

# Rohtash Singh V/s. Smt.Ramendri & Ors., reported in AIR 2000 SC 952

more particularly Para.8, 9 and 11 which reads, thus;

“8. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 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 respondent continues to be “wife” within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under :-

“Explanation. – For the purposes of this Chapter –

(a) ………………………………………………………….

(b) “wife” includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.”

9. On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in

# Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal an Others, AIR (1978) SC 1807

observed as under :-

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art.39. We have no doubt that, sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts.”

9A Claim for maintenance under the first part of Section 125 Cr.P.C. 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 125Cr. P.C. 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 wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. 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 :

# Sukmar Dbibar v. Smt.Anjali Dasi,, (1983) Crl. L.J. 36

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 contended that the Maintenance has been allowed to the respondent from the date of the application. The application under Section 125 Cr.P.C. was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for that short period, we would not be inclined to interfere.”

18. In another decision of the very coordinate bench in case of

# Narendrabhai Chandubhai Shah V/s. State of Gujarat, reported in 2013 (O) GLHEL-HC-231390

wherein, the Court has construed the expression of ‘wife’ in the context of Section 125 of Cr.P.C. Here also, a compromise between the parties took place and the proceedings came to be withdrawn by both the sides and the decree in terms of compromise took place and the application filed by the wife seeking maintenance came to be partly allowed and the Revisional Court confirmed the order of maintenance. It is in that context it has been held that a woman who is a wife as per the explanation of Section 125 continues to be the wife even if divorced and not remarried and she cannot be denied the maintenance under Section 125. A right of a wife who is in destitute condition to get the maintenance from her husband is always available to her. Any compromise or a condition contained in the agreement held to be against the public policy and not valid and thereby, after referring the same, the Court has dismissed the plea of the husband. While passing the judgment, the Hon’ble Court has also taken into consideration the case of the Apex Court as referred to above and therefore, in the opinion of this Court, these two decisions cited learned counsel for the respondents can come to the rescue and in the background of these facts and circumstances, the petition being devoid of merits, deserves to be dismissed.

19. In the background of facts and circumstances, in the opinion of this Court, no interference is required in the conclusion arrived at by the courts below, more particularly in exercise of extraordinary jurisdiction. Hence, the present Special Criminal Application is dismissed. Rule is discharged. Interim relief granted earlier stands vacated.

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