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Padmanabhan Prasadan Vs. Bhargavi Sarojini - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ826
AppellantPadmanabhan Prasadan
RespondentBhargavi Sarojini
Cases ReferredTahira v. Ali Hussain Fissalli
Excerpt:
.....has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the magistrate may, if he is satisfied that 'the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order' allowing maintenance to her. 6. in the colonial days vagrancy and destitution were regarded as a nuisance contributing to law and order problem, and some devices were adopted to overcome them. section 125 has to be read in the context of the benefit that it seeks to confer and in so doing if a few women who were divorced prior to the act became entitled to claim maintenance, the object of the section itself cannot be defeated to protect the interests of their husbands...........was taken to extend the scope of the provisions regarding maintenance. under section 125(1) of the code, husband, erstwhile husband, parents and children are made responsible for maintaining the indigent wife, erstwhile, wife, children and parents respectively.7. a division bench of this court speaking through khalid. j. kunhi moy-in v. pathumma 1976 ker lt 87 described section 125 of the code as 'a milestone in the social legislation conferring benefits to a particular group of women who is in need of help'. dealing with the manner in which these provisions have to be interpreted, khalid j. observed:section 125 has to be read in the context of the benefit that it seeks to confer and in so doing if a few women who were divorced prior to the act became entitled to claim maintenance, the.....
Judgment:
ORDER

U. Lakshminarayana Bhat, J.

1. The revision petitioner was directed under Section 125 of the Cr. P.C. by the Judicial Magistrate of First Class, Punalur in M.C. No. 12 of 1977 to pay maintenance at the rate of Rs. 50/- p. m. to his son (2nd respond-dent herein) born to him by his first wife (1st respondent herein). Claim made by 1st respondent was negatived. The respondents filed Crl. R. P. No. 101/78 before the Sessions Court, Quilon, seeking maintenance for the first respondent and seeking enhancement of maintenance for the 2nd respondent. The learned Sessions Judge confirmed the order of maintenance passed in favour of the 2nd respondent, reversed the order of the learned Magistrate denying maintenance to the first respondent and directed the revision petitioner to pay maintenance at the rate of Rs. 50/- p. m. to her also. Liability to pay maintenance to the first respondent and the quantum awarded to her are challenged before me.

2. The facts in so far as they are relevant for the purpose of this case, are undisputed. The revision petitioner and the first respondent, both Hindus, were married according to the customary form obtaining in their community on 24-6-1961. For a short while they lived together. The 2nd respondent was born in the marriage. In 1962 they fell out on account of differences of opinion. On 11-5-62 they dissolved their marriage by entering into a divorce deed. Since then they have been residing separately. First respondent has been looking after second respondent and educating him. The revision petitioner took a second wife and has two children by her. Parties proceed on the basis that the divorce deed. Ext. P2, put an end to the marital tie between them,

3. The learned Magistrate came to the conclusion that the first respondent is a person 'living separately by mutual consent after divorce' and hence ineligible to get maintenance by virtue of Section 125 Clause (4) of the Cr. P.C. (for short Code). This view has not been supported before me by any one and was found against by the learned Sessions Judge also. It was argued before the learned Sessions Judge that first respondent herein, having become a divorcee by mutual consent under Ext. P2, is not a 'wife' as defined in Section 125(1) Explanation (b). On the strength of the decisions reported in Ravindran Nair v. Sakunthala Amma 1978 Ker LT 246 : 1978 Cri LJ 1049 and Mariyumma v. Mohammed Ibrahim : AIR1978Ker231 the learned Sessions Judge negatived this contention and ordered payment of maintenance to her also.

4. In the two decisions relied on by the learned Sessions Judge the question now raised before me was not specifically considered. In the judgment of Bhaskaran J. in Valsala v. Surendran 1979 Ker LT 160 : 1979 Cri LJ NOC 187 it was held that a woman who obtained status of divorcee by mutual consent is also eligible to obtain maintenance. The question was considered and answered thus:

In my view the Parliament's intention was to extend the benefit of the Explanation to divorced woman without making any distinction between the method or forum through which the divorce came into existence. Any narrow construction placed on the scope of the Explanation would defeat the purpose of the provision to a great extent. A divorced woman is a divorced woman whether it is secured through court or by registered deed as per agreement. A divorce by agreement also implies divorce obtained from or by the spouse to satisfy the requirement of Explanation (b) to Sub-section (1) of Section 125. Clause (c) of Sub-section (3) of Section 127 which provides, that when any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate may, if he is satisfied that 'the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order' allowing maintenance to her. This is an indication that a woman who has obtained a divorce would continue to be entitled to receive maintenance until she renders herself disentitled to it by conscious act of waiver in that behalf. If the position of the woman who has obtained a divorce is this, that of the woman who obtained it by mutual consent cannot be anything worse.

5. The learned Counsel for the revision petitioner, Sri T. P. Kelu Nambiyar, contended that in the decision reported in 1979 Ker LT 160 : 1979 Cri LJ NOC 187 the intention of the Legislature was not investigated but only assumed erroneously. He also argued that a wife could become a divorcee in three ways, namely, by being divorced by the husband, by obtaining a divorce from the husband, and by putting an end to the marriage by mutual consent. According to him, the first two categories are within the purview of the definition of 'wife' in Explanation (b) of Section 125(1), while a wife falling in the third category is not attracted by the definition. He further contended that a 'wife who is residing separately by mutual consent' is not entitled to maintenance under Section 125(4) of the Code and a divorcee by mutual consent cannot be in a more advantageous position. These arguments have to be tested in the light of the avowed purpose of the provisions contained in Sections 125 and 127 of the Code and the provisions themselves.

6. In the colonial days vagrancy and destitution were regarded as a nuisance contributing to law and order problem, and some devices were adopted to overcome them. With the emerging change in values after the dawn of freedom, vagrancy and destitution are no longer regarded as a nuisance or merely as a law and order problem. They are regarded as diseases in the body of the welfare State requiring immediate attention. The State could not take up direct responsibility for removing vagrancy and destitution or creating conditions hastening their end. But the State has tried to devise means of fixing up responsibility for. maintaining such destitutes, by locating persons who have a direct or indirect connection with and responsibility for them. That is why, in enacting the Cr. P.C. 1973, considerable care was taken to extend the scope of the provisions regarding maintenance. Under Section 125(1) of the Code, husband, erstwhile husband, parents and children are made responsible for maintaining the indigent wife, erstwhile, wife, children and parents respectively.

7. A Division Bench of this Court speaking through Khalid. J. Kunhi Moy-in v. Pathumma 1976 Ker LT 87 described Section 125 of the Code as 'a milestone in the social legislation conferring benefits to a particular group of women who is in need of help'. Dealing with the manner in which these provisions have to be interpreted, Khalid J. observed:

Section 125 has to be read in the context of the benefit that it seeks to confer and in so doing if a few women who were divorced prior to the Act became entitled to claim maintenance, the object of the section itself cannot be defeated to protect the interests of their husbands.

8. I refer to the following observations of the Supreme Court speaking through V. R. Krishna Iyer, J. in Tahira v. Ali Hussain Fissalli : 1979CriLJ151 :

Welfare laws must be so read as to be effective delivery systems of the salutary obiect sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Article 15(3) of the Constitution must belight the meaning of the Section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. So, Section 125 and sister clauses must receive a compassionate expansion of sense that the words used permit.

The further observations made in paragraph 7 are also instructive:

7. The meaning of meanings is derived from the values in a given society, and its legal system. Article 15(3) has compelling, compassionate relevance in the context of Section 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3) and deliberate by design, made a special provision to help women in dis-tress cast away by divorce.

9. These provisions of the Code have been enacted with the benign obiect vital to the maintenance of social and economic equilibrium in the society. That being so, a wide interpretation has to be given to the terms of these provisions. Viewed in this light, there does not appear any reason to hold that the Legislature intended to exclude any category of divorcee from the definition of a 'wife' in Explanation (b) to Section 125(1) of the Code. It is evident that the Legislature thought, that the enumeration given in Explanation (b) is exhaustive. When the clear intention of the Legislature is to remove female vagrancy or female destitution in the country, there is no reason to hold that any particular class of divorcee-women are intended to be excluded from the benign purview of these provisions. It is true that Explanation (b) could have been worded in a simple and better manner by merely stating that 'wife includes all divorcee-women.' Instead the Legislature has attempted to enumerate different types of divorcee-women. For that reason it cannot be said that the Legislature intended to exclude any particular category of divorcee-women.

10. According to the learned Counsel for the revision petitioner, a wife who has been divorced by the husband and a wife who has obtained divorce from the husband are deserving of sympathy since in the one case she has been thrown out by the husband and in the other case she must have some legitimate ground to obtain divorce. According to him, this consideration cannot arise where the spouses amicably terminate their marital tie by mutual con-sent I am unable to agree with this submission. Mutual consent does not mean that the divorce is arranged because wife has the upperhand over the husband or because she is at fault. This is particularly so in Indian conditions. Where a husband asks for divorce from his wife, she may not be in a position to resist the same either for lack of economic strength or on account of social factors or other causes. If she agrees to the demand made by the husband and joins a deed of divorce, she is a divorcee by mutual consent. It cannot be said that the Legislature intended to exclude such a woman from the purview of Section 125 of the Code, When marital tie is severed by a document executed by both the spouses, it may be that it is brought about at the initiative of the husband; in such a case one can legitimately say that the wife is 'divorced by her husband.' If on the other hand, the document is obtained on the initiative of the wife, one can still say that she 'obtained divorce from her husband' notwithstanding that both of them signed the document. The position does not alter merely be-cause the spouses show the eood sense of avoiding embarrassing marital litigation and settle their dispute amicably. It is clear that a wife who became a divorcee by mutual consent by executing a document as in this case, would fall within the scope of the inclusive definition of 'wife' given in Explanation (b) to Section 125(1) of the Code.

11. The next argument of the learned Counsel for the revision petitioner that divorcee should not be in a better position than that of a wife in the light of Section 125(4) of the Code also does not stand close scrutiny. A wife who lives separately from the husband by mutual consent does so contrary to her legal obligations arising out of her status as spouse. This is the reason why the Legislature thought such a wife should not be entitled to claim maintenance under the summary provisions of the Code. A divorced wife has no such legal obligation at all. In fact, she resides separately because of her status as a divorcee unlike in the case of a wife who resides separately in spite of her status as a wife. Hence there is no justification to conclude that in this regard a divorcee should not be in a better of different position than that of a wife.

12. I am fortified in this conclusion by the following observations of Supreme Court in Tahira's case in Paragraph 5:

We hold that every divorcee, otherwise eligible is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current Code.

(emphasis mine)

It is true that the question in the manner now posed in this case was not presented before the Supreme Court. Nevertheless, these observations are binding on This court apart from beins entitled to great weight. The expression 'otherwise eligible' cannot be related to the manner in which the wife became divorced, but relates only to indigency and other conditions contem plated in Section 125 of the Code. I am therefore in respectful agreement with the view taken by Bhaskaran. J. in Val-sala's case. 1979 Ker LT 160 : 1979 Cri LJ NOC 187. The decision does not require re-consideration as submitted by counsel for the revision petitioner,

13. The only other contention urged before me relates to the quantum of maintenance allowed to the first respondent. The trial court allowed Rs. 50/-p. m. to the 2nd respondent and the Sessions Judge awarded Rs. 50/- to the first respondent. The evidence in the case shows that the revision petitioner working as a Hindi Pandit, earns Rupees 472/- p. m. Ext. P1 salary certificate shows that his monthly deduction is to the tune of Rs. 54/-. His net monthly salary is Rs. 416/-. It is in evidence that he and five others have joint property consisting of 2.77 acres of land and 80 cent of purayidam. There is also evidence to show that the first respondent has got 53 cents of land and the 2nd respondent has got 20 cents of land. There is no dispute that the revision petitioner took a second wife and has two children by her. It is taking into consideration all these circumstances that the learned Sessions Judge fixed Rs. 50/- p. m. as maintenance payable to the first respondent. I am not persuaded to hold that the amount awarded is excessive or unreasonable.

In the result, the revision petition is dismissed.


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