Date of judgment:
24th June 2021
Judge:
Bibek Chaudhuri, J.
Parties:
Petitioner- REHENA KHATOON
Respondent- JARGIS HOSSAIN
Subject
Can a wife claim compensation under Section 125 of CrPC if she has unilaterally divorced her husband and is unable to maintain herself? Will this situation come under as ‘substitute’ and ‘wilful neglection’ on the part of the husband?
Overview
- The petitioner, Rehana Khatoon has left her husband by unilaterally granting divorce to her husband and has claimed maintenance for herself under Section 125 of CrPC.
- The respondent-husband, Jargis Hossain has refused to pay the maintenance on the grounds that she wilfully left him and was also found in an objectionable situation with a third party by the villagers.
- The petitioner had initially prayed maintenance before Judicial Magistrate, Berhampore, Murshidabad under Section 125 for herself and her daughter but the magistrate refused the prayer and allowed maintenance only for the minor daughter.
- A revisional petition was filed before Additional Sessions Judge, 5th Court, Murshidabad, and maintenance was denied again on the grounds that the wife has herself granted divorce to husband and she cannot be destitute and wilfully neglected by the husband.
- Section 125 of CrPC by the order of the court makes the husband liable to pay maintenance to the divorced wife and minor kinds if he has wilfully neglected them and has sufficient means to carry out the maintenance.
Legal Provisions
Section 125 in The Code of Criminal Procedure, 1973- Order for maintenance of wives, children, and parents.
Judgment Analysis
- The Calcutta High Court held that a divorced wife is entitled to maintenance under Section 125 of CrPC even if the divorce was unilaterally initiated by the wife.
- The court observes that the 1st Court of the Learned Judicial Magistrate, Berhampore, Murshidabad refused the prayer for maintenance of petitioner but allowed the prayer for maintenance of minor daughter of the parties.
- The petitioner challenged the said order by filing a Criminal Revision which was heard and disposed of by the learned Additional Sessions Judge, 5th Court, Murshidabad which affirmed with the order passed by the Learned Judicial Magistrate.
- The court heard the advocate for the petitioner and scrutinised the impugned order of the Sessions Court.
- The court found that Sessions Court has observed the order of the Apex Court that the divorcee is entitled to receive maintenance from her former husband until she remarries. In the present case wife on her own accord has granted divorce to her husband.
- The Sessions Court affirms the order of Judicial Magistrate that the wife was not considered to be destitute and wilfully neglected and not entitled to maintenance.
- The court is aware of the fact the jurisdiction of the Sessions Court and this court are concurrent and in spite of power given to Session Court under section 399 of CrPC, this court has the power to correct the wrongs committed by the Trial Court as well as Revisional Court under Section 482 of CrPC.
- The learned Trial Court committed illegality when it refused maintenance to the divorced wife and the petitioner was wronged again when the revisional Court again refused maintenance to the petitioner on the grounds that she was not dutiful to her husband.
- The law is settled that a divorced wife is entitled to maintenance till her remarriage if she is unable to maintain herself.
- The court exercises its inherent power and sets aside the order of learned Additional Sessions Judge and allows the instant revision.
Conclusion
In the light of the given judgement, a divorced wife is always entitled to receive maintenance from her former husband until her remarriage, and if she is unable to maintain herself. The fact that she on her own accord unilaterally divorced her husband will not affect her right to maintenance under Section 125 of CRPC.
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