Case Note & Summary
The case involves a criminal writ petition filed by the husband challenging the order of the Adhoc Additional Sessions Judge granting maintenance to his divorced wife under Section 125 of the Criminal Procedure Code. The wife had originally filed an application for maintenance on 21.11.2005 alleging ill-treatment due to her inability to bear a child because of thyroid issues. During the pendency of that application, a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act was passed against the husband. The Magistrate dismissed the wife's application, holding that she failed to prove refusal and neglect to maintain. The wife filed a revision, and the Revisional Court allowed it, granting maintenance of Rs.1200 per month from 21.11.2005, relying on Explanation (b) to Section 125(1) CrPC which entitles a divorcee to maintenance. The husband argued that without amending the pleadings, the court could not consider the divorce, and that the wife had not established refusal or neglect. The High Court held that in summary proceedings under Section 125 CrPC, strict rules of pleading do not apply, and undisputed facts like divorce can be considered. It affirmed the Revisional Court's finding that the wife, as a divorcee, was entitled to maintenance. However, the High Court modified the date of entitlement, holding that since the wife's right accrued only upon divorce, maintenance should be granted from the date of divorce (18.01.2006) and not from the date of filing the application. The petition was partly allowed, and the order was modified accordingly.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Pleading - In summary proceedings under Section 125 CrPC, strict rule of pleading does not apply; subsequent undisputed facts such as divorce can be considered even without amendment of pleadings (Paras 6-8).
B) Criminal Procedure Code - Maintenance - Divorcee Wife - Explanation (b) to Section 125(1) CrPC - A woman divorced by a decree under the Hindu Marriage Act continues to enjoy the status of a wife for the limited purpose of claiming maintenance from her ex-husband until she remarries (Paras 7-8).
C) Criminal Procedure Code - Maintenance - Date of Entitlement - Section 125 CrPC - A divorcee wife is entitled to maintenance only from the date of divorce, not from the date of filing the application under Section 125 CrPC, if she was not entitled to maintenance on the original ground of refusal/neglect (Para 8).
Issue of Consideration
Whether a divorcee wife is entitled to maintenance under Section 125 CrPC even without amending pleadings, and from which date maintenance should be granted
Final Decision
The petition is partly allowed. The order of the Revisional Court dated 08.04.2008 is modified to the extent that the wife is entitled to maintenance from 18.01.2006 (date of divorce) instead of 21.11.2005. No order as to costs.
Law Points
- Strict rule of pleading does not apply in summary proceedings under Section 125 CrPC
- subsequent undisputed facts like divorce can be considered
- divorcee wife entitled to maintenance under Explanation (b) to Section 125(1) CrPC from date of divorce
- not from date of filing application
Case Details
2024 LawText (BOM) (09) 2731
Criminal Writ Petition No. 250 of 2008
Mr. Gopal C. Navandar, Mr. Prashant K. Deshmukh
Mr. Kishor Fulchand Pawar
Mrs. Nanda @ Komal Kishor Pawar
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Nature of Litigation
Criminal writ petition challenging the order of the Revisional Court granting maintenance to the wife under Section 125 CrPC.
Remedy Sought
The petitioner/husband sought quashing of the Revisional Court's order granting maintenance to the respondent/wife.
Filing Reason
The husband challenged the Revisional Court's order on the ground that the wife had not amended her pleadings to claim maintenance as a divorcee, and that she failed to prove refusal and neglect to maintain.
Previous Decisions
The Magistrate dismissed the wife's application under Section 125 CrPC on 06.07.2007. The Revisional Court allowed the revision on 08.04.2008, granting maintenance of Rs.1200 per month from 21.11.2005.
Issues
Whether a divorcee wife is entitled to maintenance under Section 125 CrPC without amending her pleadings to reflect the divorce?
From which date should maintenance be granted to a divorcee wife under Section 125 CrPC?
Submissions/Arguments
Petitioner argued that in the absence of pleading or amendment, the court cannot consider the divorce and entitlement under Explanation (b) to Section 125(1) CrPC; the wife failed to prove refusal and neglect to maintain.
Respondent argued that in view of Rohtash Singh, a divorcee is entitled to maintenance under Explanation (b); the divorce was an undisputed fact, and the Revisional Court correctly granted maintenance.
Ratio Decidendi
In summary proceedings under Section 125 CrPC, strict rules of pleading do not apply; subsequent undisputed facts such as divorce can be considered. A divorcee wife is entitled to maintenance under Explanation (b) to Section 125(1) CrPC from the date of divorce, not from the date of filing the application, if she was not entitled on the original ground.
Judgment Excerpts
The simple rule of pleading is that one party has to aver the facts and another party to deny it. Where there is a question of fact, then rule of pleading is strictly applied. So far as the proceeding under Section 125 of the Criminal Procedure Code is concerned, it is a summary proceeding. If prima facie material is available on record to believe the case under Section 125, the Court may surely consider it particularly if the facts are admitted.
Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code was dealt with by the Hon’ble Supreme Court in Rohtash Singh (supra) and recorded the finding in para 9 that 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.
If the right of the wife was accrued under Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code after the divorce and she was not entitled to the maintenance on the ground available under Section 125(1), she would not be entitled to the maintenance from the date of the desertion or filing the petition.
Procedural History
The wife filed an application under Section 125 CrPC on 21.11.2005. During pendency, a divorce decree was passed. The Magistrate dismissed the application on 06.07.2007. The wife filed Criminal Revision Application No.167 of 2007, which was allowed by the Adhoc Additional Sessions Judge on 08.04.2008, granting maintenance from 21.11.2005. The husband filed the present criminal writ petition challenging that order.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 125, 125(1), Explanation (b) to Section 125(1)
- Hindu Marriage Act, 1955: 13(1)(ia)
