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Natverlal Jekisandas Vs. Bai Girja D/O. Bhogilal Jamnadas and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtGujarat High Court
Decided On
Judge
Reported in(1982)2GLR90
AppellantNatverlal Jekisandas
RespondentBai Girja D/O. Bhogilal Jamnadas and anr.
Excerpt:
- - oza is not well-founded. to me it appears that like the second part of sub-section (4), this third part is also confined to the wife proper and not to a divorced wife. while dealing with an exceptional special situation, the legislature provides that if this normal cohabitation is avoided by mutual consent, then that mutual consent will go to rob the woman of her normal right of maintenance provided for and protected by sub-section (1) of section 125 of the code. he posed a question, and an interesting one no doubt, that if the interpretation which i was inclined to accept was adopted, a divorced wife would stand better situated than the wife proper. there can be comparison between two similarly situated or like persons......to 1-4-74, the day on which the present criminal procedure code came into operation, the opponent wife divorced prior to that date was not entitled to claim any maintenance; and (2) as per section 125(4) of the code, she was not entitled to claim maintenance, because the admitted deed of divorce amply showed that the husband and the opponent were 'living separately by mutual consent'. the learned magistrate agreed to hear those points as preliminary points. relying upon one supreme court judgment, be held that a wife divorced even prior to 1-4-74 was entitled to claim maintenance under section 125 of the code (mr. oza conceded before me that he did not re-agitare this question). the learned magistrate also held that as the husband and the opponent were living separately by mutual.....
Judgment:

N.H. Bhatt, J.

1. This is a revision application brought by one Natverlal whom I call the 'husband' for the sake of convenience, he being aggrieved by the order passed by the learned Additional Sessions Judge, Surat in the criminal revision application no. 82 of 1980, which he was pleased to decide in favour of the opponent Bai Girja, who admittedly is the divorced wife of the husband. The marriage had taken place in the year 1942 and in the year 1955 when the woman was carrying, by mutual agreement or consent a deed of divorce had come to be executed by and between the parties on 7-5-55 because customary law of the parties permitted such divorce. The deed of divorce was read by Mr. N.R. Oza, the learned advocate appearing for the husband and there is no controversy about the factum of divorce, nor is there any dispute about the text of the said writing of divorce. It appears that the parties mutually felt that it was no longer possible for them to pull on together and they, therefore, decided to resort to the caste custom to put an end to their marital tie, which was as per that deed and custom was put an end to. Some provision was made for the opponent's maintenance, namely, (1) she was staying with one Ratilal, the elder brother of the husband, and the deed provided that she could continue to reside with Ratilal as before; (2) one room admeasuring 10'x10' was set apart for her stay if she wanted to stay away from Ratilal and one floor of that house was earmarked for her to realise the rental income therefrom; and (3) golden ornaments weighing about 15 tolas were kept apart and she was entitled to retain them till her life-time, but on her death those ornaments were to go back to Ratilal. From the year 1955 till 1980, when the application came to be filed by the opponent, no claim was advanced against the husband and it is the husband's say that as Ratilal had filed a suit against this husband to effect partition of the alleged joint family properties, she was put forward as a tool or instrument to exert undue pressure on the husband because the opponent continued to live, according to the husband, with Ratilal as before.

2. After getting served with the notice of the court, the husband gave an application at Ex. 6 requesting the court to decide two pure questions of law as preliminary questions. They were: (1) the divorce having been effected prior to 1-4-74, the day on which the present Criminal Procedure Code came into operation, the opponent wife divorced prior to that date was not entitled to claim any maintenance; and (2) as per Section 125(4) of the Code, she was not entitled to claim maintenance, because the admitted deed of divorce amply showed that the husband and the opponent were 'living separately by mutual consent'. The learned Magistrate agreed to hear those points as preliminary points. Relying upon one Supreme Court judgment, be held that a wife divorced even prior to 1-4-74 was entitled to claim maintenance under Section 125 of the Code (Mr. Oza conceded before me that he did not re-agitare this question). The learned Magistrate also held that as the husband and the opponent were living separately by mutual consent as the deed of divorce showed the opponent was disentitled in the matter of claiming maintenance under Section 125 of the Code. The result was that the learned Magistrate dismissed the application for maintenance.

3. Being aggrieved by the said decision of the learned Magistrate, the opponent moved the Sessions Court by invoking its revisional jurisdiction. The learned Add 1. Sessions Judge there held that the divorce deed appeared to be engineered by the husband and the woman in the circumstances narrated in the divorce deed was almost a helpless victim and, therefore, the second preliminary point decided against the opponent was wrongly decided by the learned Magistrate. The appellate Judge dealt with this question in paragraphs 14, 15 and 16 of the judgment impugned in this revision application. He held 'in my opinion, the applicant-wife was forced to submit by the circumstances to the divorce deed and she was rather compelled to reside separately'.

4. Being aggrieved by the said decision, the husband has invoked for the first time the revisional jurisdiction provided for in the Criminal Procedure Code. As this is the first revision application by the husband, the preliminary contention taken by Mr. Shelat for the opponent that this being a second revision application was not competent is to be summarily rejected.

5. The only question that, therefore, falls to be decided by me is whether the application in the light of the admitted divorce deed could be said to have been hit by Sub-section (4) of Section 125 of the Code. The learned Sessions Judge over-came this difficulty by going into the question of fact, even though there was no evidence led and the pleadings, if the said word could be employed for parties' statements in these proceedings, alone were there, which were presenting almost diametrically opposite stands of the two contending parties. The divorce-deed left by itself would show that it was the outcome of joint deliberation and decision. Whoever wanted to prove otherwise was required to prove it, but the learned Addl. Sessions Judge embarked on a question of fact only on the basis of one-sided pleading of the opponent-wife. I think he was not justified in doing so and his decision to this extent is required to be set aside and is here by set aside.

6. The moot question that, however, falls to be decided is whether in the light of the deed of divorce, the text and execution of which was not in controversy between the parties, Sub-section (4) of Section 125 of the Code could be said to have been conceivably attracted. Mr. Oza, the learned advocate for the petitioner, emphasised time and again that the term 'wife' as per the inclusive definition in Clause (b) of the Explanation appended to Sub-section (1) of Section 125 included a divorced wife also. While interpreting Sub-section (4), said wider definition should invariably be read. According to him, if the ex-husband and ex-wife are living separately by mutual consent, part 3 of Sub-section (4) of Section 125 of the Code will at once be attracted. To me it appears that the argument of Mr. Oza is not well-founded. The definitions are ordinarily given in the interpretation clause so-called. That finds place in all enactments. The term 'wife' ordinarily would mean a woman, whose marital tie with the living husband exists. In order to see that a divorced woman is not without any means of maintenance and, therefore is not driven to vagrancy, the Legislature provided for a special liability of the husband and this objective is achieved by the Legislature by enlarging the definition of the term 'wife' for the purposes of Section 125 of the Code. According to Mr. Oza, wherever the term 'wife' occurs in any part of Section 125, the divorced wife must invariably and inevitably figure, though he was fair enough to concede with his usual fairness that this incorporation is to be had if the context did not otherwise indicate. Mr. Oza's fair concession makes the position clear, and easy also. If the terms 'wife' occurring in some part is incompatible or inconsistent with that enlarged definition, its normal and natural meaning is to be imparted. This appears to be acceptable even to Mr. Oza as I understand. Let us now advert to Sub-section (4) and see whether the clause 'if they are living separately by mutual consent' is susceptible of application to a wife as normally understood and also to a divorced wife. In order to collect the correct meaning, we have to examine all the three clauses of Sub-section (4). A wife in whose favour a right of maintenance has been recognised in Section 125 of the Code is denied this very right by Sub-section (4) in three different sets of circumstances. They are; (1) if the wife is living in adultery. Fidelity is the sine qua non of married life. The husband is justified in expecting his wife to be faithful to him and to him alone and any departure from this standard disentitles the wife from claiming maintenance. An argument may be advanced and I leave that question open that the husband after having severed his connection with the ex-wife cannot expect her or cannot have any moral right to expect her, to be faithful to him with earlier proverbial fidelity. (2) The second set of circumstances disentitling a wife is her refusal to live with her husband without any sufficient reasons. This second set of circumstances from the very nature of things is confined to a wife, whose marital bonds subsist. A divorced wife can by no stretch of imagination be saddled with the liability to live with the husband under the common roof, nor is she required to make out a special case for refusal to live under the common roof and share the common bed with the husband. I understand, even Mr. Oza would perhaps agree that term 'wife' occurring in second part is confined to a wife proper so-called. (3) This brings us to the third set of circumstances, which are in controversy. The normal rule for a wife is to live with the husband. It is the husband's right to have her company and, therefore, a corresponding liability of the wife to fulfil that obligation. This also is confined to a wife properly so-called, but in the case of a divorced wife, this normal assumption can never be invoked. She, from the very nature of severance of the bonds of marriage, is expected to live separately and the question of consent or no consent in the matter of separate residence does not stand envisaged or conceived. While making provision for this third part of Sub-section (4), the Legislature was carving out an exception to the normal situation. It. therefore, provides that a wife who is normally expected to stay with the husband under the common roof and thereafter claim maintenance will not be entitled to claim maintenance if the common roof is not shared by them because of their mutual understanding or contract or consent. To me it appears that like the second part of Sub-section (4), this third part is also confined to the wife proper and not to a divorced wife. The third part, in my view, presupposes as a necessary condition the normal situation of cohabitation between the male and the female, who are tied together by marital bonds. While dealing with an exceptional special situation, the Legislature provides that if this normal cohabitation is avoided by mutual consent, then that mutual consent will go to rob the woman of her normal right of maintenance provided for and protected by Sub-section (1) of Section 125 of the Code. This is the inevitable interpretation of the third part of Sub-section (4) of Section 125.

Mr. Oza in this connection advanced one ingenious argument. He posed a question, and an interesting one no doubt, that if the interpretation which I was inclined to accept was adopted, a divorced wife would stand better situated than the wife proper. To elaborate his submission, he stated that if a wife proper stayed separately by mutual consent, she would not get maintenance, but a divorced wife who stays separately with mutual consent would get maintenance and according to him, this was ex facie unreasonable. To me it appears that the whole argument proceeds on incorrect assumption of facts. There can be comparison between two similarly situated or like persons. A wife proper has to stay together with the husband as a normal condition of married life. On the other hand, a divorced wife as a normal condition of their new situation has to stay separate. Cohabitation between the two is not conceivable. To compare, therefore, these two different sets of persons is illogical and improper. The legislature deals with two different kinds of situations and so the question of one being preferred to the other does not arise.

7. In above view of the matter, I hold that part 3 of Sub-section (4) of Section 125, namely, 'if they are living separately by mutual consent' is confined to the case of a wife proper, as I have called her above, and her husband and it has no application to the case of a divorced wife vis-a-vis her ex-husband. If that be so, the view taken by the learned Addl. Sessions Judge can be supported in final analysis, though on different grounds purely technical and having no reference to the facts of the case one way or the other. What I have decided in this application is only this abstract question of law and nothing further.

8. The result is that the revision application fails. Rule stands discharged and the matter as remanded by the learned Addl. Sessions Judge shall be proceeded with by the learned Magistrate in accordance with law.


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