Whether Divorced Wife Continues to Enjoy Status of Wife for the Purpose of Claiming Maintenance

Whether Divorced Wife Continues to Enjoy Status of Wife for the Purpose of Claiming Maintenance

Divorced Wife under Section 125 Cr.P.C.: 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.

Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal an Others, AIR (1978) SC 1807 observed as under :-

  • 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.

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 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.

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

In another decision 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.

In the instant case, 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.

See Also : Rajendrabhai Virjibhai Mavadia Vs. State [Gujarat High Court, 05-08-2016]


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