Case Note & Summary
The dispute arose from a maintenance claim by a divorced wife under Section 125 of the Code of Criminal Procedure, 1973. The appellant and respondent married in 1970 and had two children. Due to marital discord, they obtained a divorce by mutual consent in 1980 under Section 13-B of the Hindu Marriage Act, 1955. The divorce decree was silent on maintenance or alimony. Years later, the appellant filed an application under Section 125 CrPC seeking maintenance from the respondent. The Magistrate dismissed the application holding that a divorced woman was not entitled to maintenance once the divorce was by mutual consent. The Sessions Judge reversed, holding the appellant entitled to maintenance and remanded the matter for determining quantum. The High Court, on revision by the respondent, set aside the Sessions Judge's order and restored the Magistrate's dismissal. The appellant appealed to the Supreme Court by special leave. The core legal issue was whether a woman divorced by mutual consent falls within the definition of 'wife' under Explanation (b) to Section 125(1) CrPC and whether Section 125(4) CrPC, which disentitles a wife living separately by mutual consent, applies to such a divorced woman. The appellant contended that Explanation (b) expressly includes a divorced woman who has not remarried, and Section 125(4) cannot apply because after divorce there is no marital relationship to which concepts like adultery, refusal to live with husband, or living separately by mutual consent can attach. The respondent argued that since the divorce was by mutual consent, the parties were living separately by mutual consent, thus barring maintenance under Section 125(4). The Supreme Court examined Section 125 CrPC. Sub-section (1) obliges a person with sufficient means to maintain his wife unable to maintain herself. Explanation (b) defines 'wife' to include a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. The Court noted it was undisputed that the appellant had not remarried and was the legally wedded wife prior to divorce. Therefore, she fell within the inclusive definition. The Court then interpreted Section 125(4), which states no wife shall be entitled to allowance if she is living in adultery, or without sufficient reason refuses to live with her husband, or if they are living separately by mutual consent. The Court held that the expression 'wife' in sub-section (4) does not have the extended meaning of including a divorced woman. The reason is obvious: after divorce, there is no relationship of husband and wife, so a divorced woman cannot be said to be living in adultery, refusing to live with her husband, or living separately by mutual consent. The Court also approved decisions of the Kerala, Madhya Pradesh, and Andhra Pradesh High Courts that took the same view. Consequently, Section 125(4) was held inapplicable to a divorced woman. The Supreme Court allowed the appeal, set aside the High Court order dated 19 August 1991, and restored the Sessions Judge's order dated 5 September 1988. The respondent was directed to pay Rs.5,000 as costs.
Headnote
A) Criminal Procedure - Maintenance of Wives - Explanation (b) to Section 125(1) Code of Criminal Procedure, 1973 - Definition of Wife Includes Divorced Woman - The appellant was legally wedded wife of respondent and had not remarried after divorce; Explanation (b) expressly includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried; therefore the appellant fell within the inclusive definition of 'wife' for purposes of maintenance. Held that a divorced woman is entitled to claim maintenance under Section 125 CrPC if she has not remarried. (Paras Not mentioned) B) Criminal Procedure - Maintenance of Wives - Section 125(4) Code of Criminal Procedure, 1973 - Bar of Living Separately by Mutual Consent Inapplicable to Divorced Woman - The expression 'wife' in sub-section (4) did not have the extended meaning of including a divorced woman; after divorce there was no relationship of husband and wife, so a divorced woman could not be said to be living in adultery, refusing to live with her husband, or living separately by mutual consent; therefore Section 125(4) did not bar maintenance to a woman divorced by mutual consent. Held that High Court erred in applying Section 125(4) to deny maintenance. (Paras Not mentioned) C) Precedent - Maintenance - Divorced Woman - High Court Decisions Consistent with Plain Language - The Supreme Court approved decisions of Kerala, Madhya Pradesh, and Andhra Pradesh High Courts holding that a wife who obtains divorce by mutual consent cannot be denied maintenance under Section 125(4) of the Code of Criminal Procedure, 1973. Held that those decisions were in conformity with the plain language of Section 125(4). (Paras Not mentioned) D) Final Order - Appeal Allowed - Costs - The Supreme Court set aside the High Court order dated 19 August 1991, restored the Sessions Judge's order dated 5 September 1988, and directed respondent to pay Rs.5,000 as costs. Held that the appeal succeeded and the appellant was entitled to maintenance. (Paras Not mentioned)
Issue of Consideration
Whether a woman who has obtained a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973, notwithstanding Section 125(4) which bars a wife living separately by mutual consent.
Final Decision
Appeal allowed; impugned High Court order dated 19-08-1991 set aside; order of Sessions Judge dated 05-09-1988 restored; respondent directed to pay Rs.5,000 as costs.
Law Points
- Explanation (b) to Section 125(1) of Code of Criminal Procedure
- 1973 includes a divorced woman who has not remarried
- Section 125(4) of Code of Criminal Procedure
- 1973 does not apply to a divorced woman because there is no relationship of husband and wife after divorce
- living separately by mutual consent cannot be attributed to parties after divorce since no consent is needed to live separately
- maintenance under Section 125 CrPC is not barred by mutual consent divorce under Section 13-B of Hindu Marriage Act
- 1955
- High Courts' consistent view approved
