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PETITIONER: SMT. VANAMALA

       Vs.

RESPONDENT: SHRI H.M.RANGANATHA BHATTA

DATE OF JUDGMENT27/07/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SEN, S.C. (J)

CITATION:  1995 SCC  (5) 299        JT 1995 (5)   670  1995 SCALE  (4)660

ACT:

HEADNOTE:

JUDGMENT:                  THE 27TH DAY OF JULY, 1995 PRESENT:           Hon’ble the Chief Justice           Hon’ble the Mr. Justice S.C.Sen Mr. S. N. Bhat, Adv. for the Appellant Mr. K. R. Nagaraja, Adv. for the Respondent.                       J U D G M E N T      The following Judgment of the Court was delivered: Smt. Vanamala V. Shri H.M. Ranganatha Bhatta                        J U D G M E N T AHMADI, CJI      Special leave granted.      The facts  in brief  reveal that  the appellant married the respondent  some time in 1970 and then gave birth to two issues from  the said  wedlock. Unfortunately,  her  married life was  not smooth  and in 1980 divorce by mutual consent, was obtained  under Section  13-B of the Hindu Marriage Act. While granting divorce by mutual consent, no order in regard to maintenance  or alimony was made. The decree is silent on that  count.   Few  years   later  the  appellant  filed  an application under  section  125  of  the  Code  (hereinafter called ’the  Code’) seeking  maintenace from the respondent. The learned  Magistrate dismissed  the  application  holding that a  divorcee woman  was not entitled to maintenance once it is  found that the divorce was by mutual consent. Against that order the appellant filed a Revision Application to the Sessions Court.  The learned  Sessions  Judge  came  to  the conclusion that  the appellant  was entitled  to maintenance notwithstanding the  divorce by  mutual consent and remanded the matter to the Trial Court for determining the quantum of maintenance. Against  this order  of  the  learned  Sessions Judge,  the  respondent  preferred  a  Revision  Application before the  High Court  and the  High Court  by the impugned

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judgment and  order dated  19.8.1991 set  aside the order of the learned  Sessions judge  upholding the view taken by the learned Magistrate  and dismissed  the  application.  It  is against  that   order  that  the  present  appeal  has  been preferred.      Section 125  of the  Code makes provision for the grant of maintenance  to wives,  chaildren and parents.Sub-section (1) of section 125 inter alia says that if any person having sufficient means  neglects or  refuses to  maintain his wife unable to  maintain herself, a Magistrate of the first class may, upon  proof of  such neglect  or  refusal,  order  such person to  make a  monthly allowance  for the maintenance of his wife  not exceeding  Rs.500/-  in  the  whole,  as  such magistrate thinks fit, and to pay the same to such person as the Magistrate  may from  time to time direct. Clause (b) of the explanation  to the  sub-section defines  the expression ’wife’ to  include a  woman who has been divorced by, or has obtained a  divorce from, her husband and has not remarried. In the  instant case  it is  not contended by the respondent that the appellant has remarried after the decree of divorce was obtained  under Section  13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife  of the  respondent prior  to the passing of the decree of  divorce. By  virtue of the definition referred to above she  would, therefore,  be entitled  to maintenance if she could  show that the respondent has neglected or refused to maintain her. Counsel for the respondent, however,invited our attention to sub-section (4) of Section 125, which reads 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. On a  plain reading  of this  Section it  seems fairly clear that the  expression ’wife’ in the said sub-section does not have the  extended meaning of including a woman who has been divorced. This  is for  the obvious reason that unless there is a  relationship of  husband and  wife  there  can  be  no question of  a divorcee  woman living in adultery or without sufficient reason  refusing to  live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife  living separately  by mutual consent because after divorce there  is no need for consent to live separately. In the context,  therefore, sub-section (4) of Section 125 does not apply  to the  case of  a woman who has been divorced or who  has  obtained  a  decree  for  divorce.  In  our  view, therefore, this contention is not well founded.      Counsel for the appellant also pointed out that some of the High Courts had taken a similar view. Reference was made to the  case of  Kongini Balan  Vs. M. Visalakshy, 1986 (92) Criminal Law  Journal 697 (Kerala), wherein it was held that a wife  who obtains  a divorce  by mutual  consent cannot be denied maintenance by virtue of Section 125 (4) of the Code. Similar view  was taken in Krishan Kumar Vs. Kiran, 1 (1991) DMC 248  (Madhya Pradesh)  wherein  it  was  held  that  the expression ’living  separately by  mutual consent’  does not cover cases  of those  living separately due to divorce. The same view  was expressed  in M.  Ramakrishna  Reddy  Vs.  T. Jayamma and Another, 1992 (98) Criminal Law Journal 1368. In that case  divorce was  obtained by  mutual consent  on  the

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ground of  incompatibility  and  thereafter  the  woman  was living separately,  it was  held  that  this  could  not  be construed to be an agreement for living separately by mutual consent and  hence the woman was entitled to maintenance. We think these  decisions are  in  conformity  with  the  plain language of  sub-section (4)  of section  125 which  we have construed hereinbefore. The contention raised by the counsel for the husband is, therefore, unsustainable. The High Court was, therefore,  clearly wrong in reversing the order passed by the  Sessions Judge. In the result, this appeal succeeds, The impugned order of the High Court dated 19th August, 1991 is set  aside. The order of the learned Sessions Judge dated 5th September,1988  is restored.  The  respondent  will  pay Rs.5,000/- by way of cost.