S.125 CrPC– is desertion a defence only till divorce?

Sub-section (4) of Section 125, Cr. P.C. provides as under :-

"(4) 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."      

Explanation (b) to sub-section (1) of s. 125 of Cr.P.C. provides as under :-

"Explanation.- For the purposes of this Chapter-

(a) ...........................................

(b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried."

In Rohtash Singh, Petitioner v. Smt. Ramendri AIR 2000 SC952 the husband had filed a petition for divorce on the ground of desertion by wife. During the pendency of the suit for divorce, the respondent wife had filed an application for maintenance under Section 125 of the Code of Criminal Procedure in 1993. In 1995 the suit for divorce was decreed. The application of wife for maintenance was allowed by the Family Court, Meerut in 1997 in spite of the fact that the judgment by which a decree for divorce was passed in favour of the petitioner on the ground of respondent's desertion was brought to the notice of the Family Court. The judgment passed by the Family Court, Meerut was challenged by the petitioner in a Revision filed in the High Court but the Revision was dismissed. Against this judgment the husband filed SLP before the Supreme Court. It was contended that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of sub-section (4) of Section 125, Cr. P.C.

The Supreme Court held that wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125, Cr. P.C. and the plea of desertion by wife cannot be treated to be an effective plea in support of the husband's refusal to pay her the Maintenance Allowance. After decree for divorce is passed she is under no obligation to live with the husband but though marital relations come to an end by the divorce granted by family Court under S. 13 of Hindu Marriage Act, the respondent continues to be wife within meaning of S. 125, Cr. P.C. on account of Expln. (b) to sub-sec (1) of S. 125 which provides that 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. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her. However since the decree of divorce was passed on the ground of desertion by wife, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. The court held that :

“Claim for maintenance under the first part of Section 125, Cr. P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125, Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125, Cr. P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See : Sukumar Dhibar v. Smt. Anjali Dasi, 1983 Cri LJ 36 (Cal)). The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.”