Case Note & Summary
The Supreme Court dismissed the appeals filed by Dr. Swapan Kumar Banerjee against the State of West Bengal and another, challenging the maintenance awarded to his divorced wife under Section 125 of the Code of Criminal Procedure, 1973. The matrimonial dispute began in 1992 when the husband filed a petition for judicial separation, alleging desertion by the wife since 1987. A divorce petition was filed in 1997 and granted in 2000. During the period of separation and divorce proceedings, the wife did not file any maintenance petition, though she had filed an application under Section 24 of the Hindu Marriage Act, 1955, which was either dismissed for non-prosecution or not pressed. After the divorce, the husband remarried, and thereafter the wife filed a petition for maintenance under Section 125 Cr.P.C. The husband opposed the petition on two grounds: first, that the wife, having been divorced on the ground of desertion, was not entitled to maintenance under Section 125(4) Cr.P.C., which disentitles a wife who refuses to live with her husband without sufficient reason; and second, that the wife, being a qualified architect from Jadavpur University, had sufficient income to maintain herself. The Court rejected both contentions. On the first issue, the Court relied on earlier precedents, including Vanamala v. H.M. Ranganatha Bhatta, Rohtash Singh v. Ramendri, and Manoj Kumar v. Champa Devi, which held that the definition of 'wife' in Section 125 includes a divorced woman, but sub-section (4) does not apply to divorced women because after divorce there is no question of living with the ex-husband or living separately by mutual consent. The Court further held that the deeming fiction of treating a divorced woman as a wife is limited to the purpose of maintenance and cannot be extended to compel her to live with her former husband. On the second issue, the Court noted that no evidence was led by the husband to show the wife's income or employment, and in the absence of such evidence, no presumption of sufficient income could be raised. The Court also held that the delay in filing the maintenance petition was not a bar, as it is for the wife to decide when to seek maintenance. The appeals were dismissed, and the maintenance of Rs. 10,000 per month awarded by the lower courts was upheld.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 Cr.P.C. - Divorced Wife - Desertion - The issue was whether a divorced wife, against whom a decree of divorce was passed on the ground of desertion, is entitled to maintenance under Section 125 Cr.P.C. - The Court held that the deeming fiction of 'wife' including a divorced woman is only for the limited purpose of maintenance and cannot be stretched to compel a divorced wife to live with her ex-husband - Sub-section (4) of Section 125 does not apply to divorced women as there is no question of living in adultery, refusing to live with husband, or living separately by mutual consent after divorce - Held that a husband cannot divorce his wife on ground of desertion and then deny maintenance on the ground that she is not willing to live with him (Paras 1-5). B) Criminal Procedure Code - Maintenance - Section 125 Cr.P.C. - Delay in Filing Petition - The wife filed maintenance petition after divorce was granted, though she had not filed any petition during the period of separation or during divorce proceedings - The Court held that the mere fact that the wife did not file a maintenance petition earlier is no ground to deny maintenance later - It is for the wife to decide when to file such petition (Para 6). C) Criminal Procedure Code - Maintenance - Section 125 Cr.P.C. - Burden of Proof - Income of Wife - The husband contended that the wife, being a qualified architect, had sufficient income - The Court held that no presumption can be raised that the wife is earning sufficient amount to support herself in the absence of evidence led by the husband - The burden was on the husband to lead evidence regarding the wife's income (Para 7).
Issue of Consideration
Whether a wife, who has been divorced by the husband on the ground that she deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973.
Final Decision
The Supreme Court dismissed the appeals, upholding the maintenance of Rs. 10,000 per month awarded to the divorced wife. The Court held that a divorced wife is entitled to maintenance under Section 125 Cr.P.C. even if the divorce was granted on the ground of desertion, and that sub-section (4) does not apply to divorced women. The Court also held that delay in filing the maintenance petition is not a bar, and the husband failed to prove that the wife had sufficient income.
Law Points
- Maintenance to divorced wife
- Section 125 Cr.P.C.
- Desertion as ground for divorce does not bar maintenance
- Deeming fiction of 'wife' includes divorced woman
- Sub-section (4) does not apply to divorced women
