1. This Revision application is directed under the provisions of Section 397 of the Code of Criminal Procedure against the judgment and order passed by the learned Judge, Family Court No.2, Ahmedabad in Criminal Misc. Application No.1046 of 2000 (Original Case No.9 of 1995) dated 21.7.2003, whereby the learned Family Judge allowed partly the application of the applicant and so far daughter is concerned, she has been awarded the maintenance of Rs.200/ from 3.2.1995 to 30.9.1999 and Rs.500/ from 1.10.1999.
2. Learned advocate Mr. Motiramani for the applicant submitted that the provisions of the Hindu Marriage Act has not been properly appreciated by the learned trial Judge, while deciding the application and rejected the applicant on the ground of cruelty. The respondent has obtained divorce decree in the year 1997 on the ground of cruelty. He also submitted that as per the case of the opponent, though the issuance of the notice, the applicant did not return to the matrimonial home, hence, failure of restitution of conjugal rights cannot entitle the applicant to get the maintenance under Section 125(4) of the Code. The learned Family Court observed that the applicant is a divorced lady and the opponent got remarried and as the applicant failed to restitution of conjugal rights, therefore, the applicant is not entitled for maintenance to the tune of Rs.500/ only without considering the education and maintenance expenses. Learned advocate further submitted that as per the provisions under Section 125 of Code of Criminal Procedure, the meaning of wife is prescribed in detail, more particularly, Section 125(b) of the Code of Criminal Procedure, which reads as under :
“(b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”
3. Learned advocate further submitted that the applicant is divorced lady and the opponent husband has remarried, but he drew the attention to the provision of Section 125 of the Code of Criminal Procedure and he relied upon the decision in the case of Rohtash Singh Vs. Ramendri (Smt) and others reported in (2000) 3 Supreme Court Cases 180, more particularly para Nos. 8 to 11. He submitted that the Hon'ble Supreme Court has considered the claim of maintenance made by the divorced wife. Therefore, the woman, after divorce, is entitled to get maintenance. He also submitted that the woman, who has been divorced, continues to enjoy the status of a wife for the limited purpose of claiming maintenance from her husband. He also submitted that it is a statutory duty of the husband to provide maintenance to his former wife. He also submitted that on the basis of divorce, the husband cannot deny the maintenance. Therefore, he submitted that the trial Court has not considered such right of the applicant for maintenance and, therefore, the order is required to be quashed and set aside by allowing this Revision.
4. As against, learned advocate Mr. H.K. Patel for the respondent husband submitted that learned Family Court has rightly considered the maintenance towards the daughter and the wife, who is divorced lady, is not entitled for any maintenance. He also submitted that the applicant is permanently residing at Rajasthan and she has source of income and she is carrying some business. He also submitted that the respondent husband is dismissed from the service of Railway and, therefore, now he is facing financial hardship. He also submitted that minor daughter is now become major. Considering the circumstances, the application may kindly be rejected.
5. Heard both the parties and perused the record. I have taken into consideration the order passed by the Court below. The divorce decree has been passed on the ground of cruelty alone and not on the desertion. Therefore, on the ground cruelty, learned Family Court held that the applicant is not entitled for maintenance. I have perused the decision in the case of Rohtash Singh Vs. Ramendri (Smt) and others reported in (2000) 3 Supreme Court Cases 180. As per the said decision of the Hon'ble Supreme Court, the divorced wife is entitled for maintenance. As per the provision of 125(4) of Code of Criminal Procedure, no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, of if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Here in this case, on the ground of cruelty, the divorce took place between the husband and wife. Therefore, as per the provisions of the law, the wife is entitled to get maintenance, though she is a divorced wife. I have also perused the Section 125 of the Code of Criminal Procedure. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). If the wife 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. Herein this case, the wife has not remarried and respondent has never produced any document for her remarriage. In short, considering the provisions under Section 125 of the Code of Criminal Procedure and as per the decision aforesaid of the Hon'ble Supreme Court, the divorced woman is entitled to get maintenance from her former husband. Therefore, I am of the opinion, that the trial Court has committed grave error in passing the order. Hence, the same is required to be quashed and set aside.
6. In view of the above observation, the Revision is allowed. The judgment and order dated 21.7.2003 passed in Criminal Misc. Application No.1046 of 2000 (Original Case No.9 of 1995) passed by the learned Judge, Family Court No.2, Ahmedabad is quashed and set aside so far the maintenance to the applicant is concerned. The applicant – wife is entitled for Rs.1000/ towards maintenance from the date of filing application before the Family Court, Ahmedabad. So far the maintenance towards the daughter is concerned, the order of the trial Court is conformed, but the daughter is entitled to get the amount of maintenance till she become major. R & P to be sent back to the trial Court, forthwith.
ynvyas (Z.K.SAIYED,J.)