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K. Shanmukhan Vs. G. Sarojini - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ830
AppellantK. Shanmukhan
RespondentG. Sarojini
Cases ReferredValsala v. Surendran
Excerpt:
.....of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other..........divorce is accepted as legal by both sides. the learned magistrate disallowed maintenance to the divorcee-wife on the ground that she was living separately by mutual consent and that at the time of divorce a sum of rs. 3,000/- was promised to her as compensation under the travancore ezhava act. this order was reversed by the learned sessions judge who held that as a divorcee-wife she is entitled to maintenance and section 127(3)(b) of the cr. p.c. will not apply since the payment, though promised, was not actually made.3. learned counsel for the revision petitioner has urged four contentions before me, viz., (1) that the decision of the full bench in mariyumma v. mohammed ibrahim : air1978ker231 is wrong, (2) that even if that decision is to be followed, section 125, clauses (4) and.....
Judgment:

U.L. Bhat, J.

1. This revision is directed against the order of the 1st Additional Sessions Judge, Quilon in Criminal R. P. No. 16 of 1979 allowing maintenance at the rate of 40/- per mensem to the respondent herein as payable by the revision-petitioner. The respondent had filed M. C. 89/78 before the Chief Judicial Magistrate, Quilon seeking maintenance and the same was dismissed accepting the contentions raised by the revision petitioner.

2. The parties were married on 9-11-1966 and a child was born in the marriage. In an earlier proceeding M. C. 82/70, maintenance at the rate of Rs. 15/-per month was ordered to the child, to be subsequently increased to Rs. 30/-per month. The marriage between the spouses was dissolved in 1973 under Ext. D-l document. The divorce is accepted as legal by both sides. The learned Magistrate disallowed maintenance to the divorcee-wife on the ground that she was living separately by mutual consent and that at the time of divorce a sum of Rs. 3,000/- was promised to her as compensation under the Travancore Ezhava Act. This order was reversed by the learned Sessions Judge who held that as a divorcee-wife she is entitled to maintenance and Section 127(3)(b) of the Cr. P.C. will not apply since the payment, though promised, was not actually made.

3. Learned counsel for the revision petitioner has urged four contentions before me, viz., (1) that the decision of the Full Bench in Mariyumma v. Mohammed Ibrahim : AIR1978Ker231 is wrong, (2) that even if that decision is to be followed, Section 125, Clauses (4) and (5) as interpreted by the Full Bench in the above decision are violative of Article 14 of the Constitution, (3) that the respondent became' a divorcee by mutual consent and therefore is excluded from the operation of the inclusive definition of wife in Section 125, Clause (1) Explanation (b), and (4) that the quantum awarded is excessive.

4. The first contention does not deserve any notice since the decision of the Full Bench is binding on me. The Full Bench has held that the restrictions imposed under Section 125, Clauses (4) and (5) of the Code are not applicable to a divorcee-wife, but will apply only to a wife whose marriage is subsisting. Learned counsel for the revision petitioner would contend that the provision in Section 125(1), Explanation (b) that 'wife' includes a divorcee-wife must mean that under all circumstances and in all contingencies a wife (in the strict sense) and a divorcee-wife must be treated equally in the eye of the law and since restrictions under Sections 125(4) and (5) of the Code as interpreted by the Full Bench are not applicable to a divorcee-wife, those clauses are hit by Article 14 of the Constitution. Assuming this contention to be true, it is not going to help the revision petitioner because at best those provisions may be struck down as violative of Article 14 of the Constitution and that will not improve the position of the petitioner.

5. In the Cr. P.C. 1898, Section 488 provided for maintenance only to wife and child, the order to be passed against the husband or the father respectively. The scope of this beneficent provision has now been substantially enlarged under Section 125 of the Cr. P.C. 1973, (for short the Code). Under the new Code, besides a wife and a child, a divorcee-wife as well as parents are eligible to get an order of maintenance if other conditions are satisfied. The other conditions are that they are unable to maintain themselves and the person against whom an order is sought has sufficient means, but neglects or refuses to maintain them. Once these conditions are satisfied, the persons who fall within the purview of Section 125 of the Code, are entitled to get an order of maintenance.

6. In law. the status of a wife (in the ordinary sense of a wife whose marriage is subsisting) and a divorcee-wife are wholly different. In the former case, she has the status as wife of another person and thereby has certain legal rights and obligations springing from her status. In the latter case, she has no status vis-a-vis her erstwhile husband and has no legal right or obligation springing from her state of being a divorcee-wife, except to the limited extent provided in Section 125 of the Code. Similarly, parents who are now eligible to make a claim under Section 125 of the Code, have also no legal rights or obligations springing from their status, vis-a-vis their children in so far as their personal law is concerned.

7. In enacting Section 125 of the Code, the dominant intention of the Legislature was only to amplify the protection given under Section 488 of the Cr. P.C. 1898 with a view to bring down vagrancy and destitution. It was for that reason that the Legislature sought to give protection to parents and to divorcee-wife. Father, mother, child and wife are specifically mentioned in Section 125, Clause (1) of the Code. It is true that in Section 125, Clause (1), another clause could have been added to bring in a divorcee-wife also within the scope of Section 125(1) of the Code. But had a divorcee-wife been included in a specific clause in Section 125(1) of the Code, repeated references would have been necessary to such a divorcee-wife at other places also. Therefore, a divorcee-wife was introduced into the picture by giving an inclusive definition of 'wife' in Explanation (b) to Section 125(1) of the Code. Her inclusion in the definition of the word 'wife' is only a device to bring her within the protective umbrella of Section 125(1) of the Code. As observed by the Full Bench in Mariyumraa's case : AIR1978Ker231 . the object of the Explanation is to obviate repeated references to wife as well as the wife Who has been divorced in appropriate places in the relevant sections. Thus it is clear that divorcee-wife is included in the definition of 'wife', not because legally her status is the same as that of a wife, but only as a device to secure to her the protection of Section 125(1) of the Code. This does not and cannot mean that in other matters their status, legal .rights and liabilities are the same iust as it cannot mean that the legal rights and liabilities of parents and children are the same as those of wives. As the Full Bench stated in Mariyumma's case : AIR1978Ker231 , Clauses (4) and (5) of Section 125 do not apply to a divorcee-wife because the conditions contemplated therein cannot apply to her but can apply only to a wife whose marriage is still subsisting. 8. Article 14 of the Constitution of India reads thus:

14. Equality before law.-- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 14 does not require that all persons must always and invariably be treated similars by law or protected similars by law. Article 14 no doubt condemns discrimination and forbids class legislation. But it has to be borne in mind that Article 14 does not forbid classification. Classification is permissible if it is founded on intelligible differentia which distinguish persons who are grouped together from other left out of the group and if the differentia have a rational relationship to the object sought to be achieved by the statute in question. If law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. The Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. There is always a presumption in favour of the constitutionality of an enactment or a provision.

9. Section 125(1) of the Code is intended to give protection to four different classes of people, namely, parents, children, wives and divorcee-wives. There is no argument before me that for want of inclusion of other categories of persons. Section 125(1) must be treated as obnoxious. The argument is that since a wife and a divorcee-wife are treated on a par under Explanation (b) to Section 125(1) of the Code, Legislature has no power to introduce restrictions only regarding a wife (that is wife whose marriage is subsisting) in Clauses (4) and (5) of Section 125 of the Code, while relieving a divorcee-wife from the scope of its restrictions,

10. It appears to me that the classification or differentiation between a wife whose marriage is subsisting and a divorcee-wife is based on intelligible differentia and is intended to subserve the purpose of the main provision itself. The indigent wife should not get the benefit of maintenance under circumstances contemplated by Clauses (4) and (5) of Section 125 of the Code. These circumstances, by their very nature, are inapplicable in the case of a divorcee-wife. It is not as if no restrictions were imposed in the case of a divorcee-wife. Some restrictions have been imposed on a divorcee-wife under Section 127(3) of the Code. It is to be noted that the restrictions contemplated in Section 127(3) of the Code are inapplicable to the case of a wife whose marriage is subsisting. The classification is based on intelligible differentia and springs from her very status or lack of status and is also intended to serve the broader object of the scheme of law. To illustrate this reasoning I need only refer to the restrictions in Clauses (4) and (5) of Section 125 of the Code regarding the disability of a wife to claim maintenance where she refuses to live with her husband without sufficient reason. To provide for such a dis-abiltiy in the case of a divorcee-wife would be the height of absurdity as under the present law of any community, a divorcee-wife has no duty to live with the erstwhile husband. Thus it can be seen th.it the classification is not only reasonable but also necessary in order to lend content, substance and meaning to the provisions contained in Section 125 of the Code. I therefore reject the contention based on Article 14 of the Constitution.

11. It is argued that Explanation (b) to Section 125(1) of the Code takes in only two categories of divorced women, namely, a woman who has been divorced by her husband and a woman who has obtained a divorce from her husband, and that there is a third category, namely, a wife who has attained the status of a divorcee by mutual consent, and that such a divorcee-wife is outside the pale of the inclusive definition in Explanation (b) to Section 125(1) of the Code. This argument has been rejected in Valsala v. Surendran 1979 Ker LT 160 : 1979 Cri LJ NOC 187. I have followed this decision in Crl. R. P. No. 189 of 1979 : reported in 1981 Cri. LJ 826. I am not persuaded to think that this view requires re-consideration.

12. The last Question relates to quantum. The trial court has applied its mind to the question of auantum of maintenance and though it dismissed the petition, recorded a finding on the question of quantum. The revisional court has observed in its judgment that the quantum so fixed has not been challenged before it. Under these circumstances, I am not persuaded to hold that the quantum fixed requires any modification. Revision petition is dismissed.


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