HAN SINGH Vs. GULAB DEBI

JUDGEMENT

(1.) Both these appeals are under section 19 of the Family Courts Act, 1984 against the award of maintenance to a divorced wife under section 125 of the Code of Criminal Procedure, 1973. The only controversy relates to the tenability of the claim for maintenance under section 125, Cr. P.C. The material facts are only a few and are common in both the cases.

(2.) The two appellants are brothers who were married to two sisters in 1967 and they lived together till 1976. Each couple has a child born during this period. In each case the wife after leaving the matrimonial home filed a petition under section 10 of the Hindu Marriage Act which was dismissed. There after, in 1979 the husband in each case filed a petition for divorce under section 13 of the Hindu Marriage Act on the ground of wifeTs desertion. During the pendency of the divorce proceedings maintenance pendente lite was awarded to wife in each case and ultimately in 1981 a decree for divorce was passed on the ground of wife's desertion. It may be mentioned that no order for permanent alimony or maintenance under section 25 of the Hindu Marriage Act was made while disposing of the divorce petition, nor any such order under that provision has been made so far. The husband has re-married after getting the decree for divorce. The wife in each case filed an application on March 17, 1986 for grant of maintenance under section 125, Cr. P.C. which was allowed by the Family Court. In Misc. Appeal No. 2R9 of 1988 the wife has been awarded Rs. 200/- per month as the maintenance from the date of application, while in Misc. Appeal No. 62 of 1988 the wife has been granted maintenance Rs. 250/- per month from the same date. In Misc. Appeal No. 289 of 1988 Rs. 100/- has also been awarded to the child, but the same has not been assailed. The challenge in both these appeals is only to the grant of maintenance to the divorced wife under section 125, Cr. P.C.

(3.) The main argument in support of both these appeals is that the decree for divorce having been granted to the husband on the ground of wifeTs desertion, sub-section (4) of section 125 forbids the grant of any maintenance under section 125 Cr. P.C. since the wife had admittedly refused to live with her husband without any sufficient reason. This argument requires the construction of subsection (4) of section 125, Cr. P.C. which reads as under: No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if, without any sufficient reason, she refuses to live with her husband, or If they are living separately by mutual consent. Sub-section (1) of section 125 gives the power to award maintenance to the persons specified therein including the wife and clause (b) of the Explanation therein defines wife to include a woman who has been divorced by or has obtained divorce from her husband and has not remarried. There is no dispute that this definition of wife includes within its ambit the respondent in both these appeals since each of these Women though divorced by the appellant has not herself remarried.