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 husband had obtained a divorce on the ground of desertion by the wife. The core legal issue was whether a divorced wife, particularly one divorced on the ground of desertion, is entitled to maintenance under Section 125 Cr.P.C. The appellant argued that under sub-section (4) of Section 125, a wife who deserts her husband is not entitled to maintenance, and since the definition of 'wife' includes a divorced woman, the same disability should apply. The Court, however, rejected this contention, relying on precedents including Vanamala v. H.M. Ranganatha Bhatta, Rohtash Singh v. Ramendri, and Manoj Kumar v. Champa Devi, which held that sub-section (4) does not apply to divorced women because after divorce there is no question of living with the ex-husband. The Court reasoned that the deeming fiction of treating a divorced woman as a wife is limited to the purpose of maintenance and cannot be extended to impose an obligation to cohabit. On the merits, the Court noted that the wife, an architect, had not filed for maintenance during the matrimonial proceedings but did so after divorce. The Court held that delay is not a bar. The husband claimed the wife had sufficient income, but the Court found no evidence to support this, placing the burden on the husband. The maintenance of Rs.10,000 per month was upheld. The appeals were dismissed, affirming the wife's right to maintenance.
Headnote
A) Criminal Law - Maintenance - Section 125 Cr.P.C. - Divorced Wife - A divorced wife is entitled to maintenance under Section 125 Cr.P.C. even if the divorce was granted on the ground of desertion by the wife. Sub-section (4) of Section 125 does not apply to divorced women as there is no question of living with the ex-husband after divorce. (Paras 1-5) B) Criminal Law - Maintenance - Section 125(4) Cr.P.C. - Applicability to Divorced Women - Sub-section (4) of Section 125, which disentitles a wife from maintenance if she refuses to live with her husband, does not apply to a divorced woman because after divorce there is no obligation to live with the ex-husband. The deeming fiction of 'wife' including a divorced woman is limited to the purpose of maintenance and cannot be extended to impose a duty to cohabit. (Paras 3-5) C) Criminal Law - Maintenance - Burden of Proof - Income of Wife - The burden to prove that the wife has sufficient income to maintain herself lies on the husband. In the absence of evidence, no presumption can be raised that the wife is earning sufficient amount. (Para 7) D) Criminal Law - Maintenance - Delay in Filing Petition - A wife's delay in filing a maintenance petition, whether during or after matrimonial proceedings, does not bar her claim. She may choose the time to file such petition. (Para 6)
Issue of Consideration
Whether a wife, who has been divorced by the husband on the ground of desertion, 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 on the ground of desertion, and sub-section (4) does not apply to divorced women.
Law Points
- Divorced wife entitled to maintenance under Section 125 Cr.P.C.
- Sub-section (4) of Section 125 does not apply to divorced women
- Deeming fiction of 'wife' includes divorced woman only for maintenance
- No presumption of income without evidence
