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Ladu Ram Vs. Smt. Rukma Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 140 of 1975
Judge
Reported in1976WLN32
AppellantLadu Ram
RespondentSmt. Rukma Devi and anr.
DispositionPetition dismissed
Excerpt:
.....pay maintenance to a divorced wife accrued for the first time after coming into force of the new code of criminal procedure. this liability did not accrue under the old criminal procedure code; and, at such, it cannot be held that the liability which accrued under the old code of criminal procedure is sought to be enforced under the provisions of section 25, cr.p.c.;(c) criminal procedure code (new) - section 125--maintenance--no distinction between a divorce by judicial process or by customary practice--both are entitled to maintenance.;a divorced wife, whether by the process of judicial decree or by customary practice, is a divorced woman for all purposes, as contemplated under section 125, cr.p.c. the contention of the learned counsel for the applicant that distinction must be drawn..........and determined only in accordance with the provisions of that code and the provisions of the new code of criminal procedure cannot be invoked or availed of.4. on behalf of the respondent soot rukroa devi, it was contended that the provisions of section 6(e) of the general clauses act are not attracted in the instant case. it was also contended that no distinction can be drawn between customary divorce & divorce obtained through judicial proceedings. it was further contended that the cause of action for making an application under section 125 cr.p.c. 1973 arose, for the first time, after 1-4-1974, that is, after the commencement of the new code of criminal procedure, and as such the principle of res judicata cannot be held to be applicable.5. the learned public prosecutor, practically.....
Judgment:

P.D. Kudal, J.

1. This is a revision petition against the order of the learned Judicial Magistrate. Shri Ganganagar dated 20th February, 1975, whereby be awarded maintenance allowance of Rs. 250/- per month to the non-petitioner Smt. Rukma Devi.

2. The facts of the case, in brief, relevant for the disposal of this revision petition are that the applicant was married Smt (sic) Devi about 40 years back. Out of this wedlock two daughters were born to Smt. Rukma Devi. But, as no son was born, the application married a second wife Smt. (sic) Smt. Rukma Devi continued to live with the applicant even after his marriage with Smt. Dikha for some time and, then she left living with the petitioner, and started living with her parents Smt. Rukma Devi then moved an application under Section 488, Cr.P.C. Old.) on 16-5-1959, which was allowed and a maintenance allowance of Rs. 200/- per month was fixed Later on, the petitioner obtained a decree of divorce against Smt Rukma Devi on 4-12-1971. He then applied on 19.2.1973. After coming into force of the New Criminal Procedure Code, Rukma Devi moved an appliction under Section 125, Cr.P.C. on 25.6.1974. This application was allowed on 20-2-1975 and a maintenance allowance of Rs. 250/- per month was ordered to be paid by the petitioner to Smt Rukma Devi. It is against this order that the present revission petition has been filed.

3. On behalf of the petitioner, it was contended that the learned Magistrat (sic) in law in entertaining a second application for grant of maintenance allowance when the previous order of grant of maintenance was annulled on 19-2-1973 It was also contended that the New Criminal Procedure Code has no retrospective applicability, & the rights of the parties, which were determined under the old Criminal Procedure Code, cannot now be reopened. It was also contended that the principle of res judicata would also apply in substance, to this case, and the second application by Smt Rukma Devi should not have been entertained at all. It was also contained that the provisions of Section 125 Cr.P.C. apply to customary divorces, and not to divorces secured through judicial proceedings. The learned Counsel for the applicant also placed reliance on Section 6(e) of the General Clauses Act, and contended that alt rights and liabilities, which had accrued under the old Criminal Procedure Code; could be decided, continued and determined only in accordance with the provisions of that Code and the provisions of the New Code of Criminal Procedure cannot be invoked or availed of.

4. On behalf of the respondent Soot Rukroa Devi, it was contended that the provisions of Section 6(e) of the General Clauses Act are not attracted in the instant case. It was also contended that no distinction can be drawn between customary divorce & divorce obtained through judicial proceedings. It was further contended that the cause of action for making an application Under Section 125 Cr.P.C. 1973 arose, for the first time, after 1-4-1974, that is, after the commencement of the New Code of Criminal Procedure, and as such the principle of res judicata cannot be held to be applicable.

5. The learned Public Prosecutor, practically supported the views of the learned Counsel for the respondent No. 1.

6. The contentions of the learned Counsel for the parties have been considered and the record of the case perused. In the New Code of Criminal Procedure, provision has been made under Section 125, Cr.P.C. to do better justice to women Under the old Code, a women who bad been divorced could not claim any maintenance from her ex-husband The explanation added to Section 125, Cr.P.C. clearly indicates that by a legal fiction for the purpose of getting maintenance, ever, a w mm who has been divorced, has been included in the definition of the word 'wife'. The contention of the learned Counsel for the applicant that the new Code of Criminal Procedure cannot have any retrospective applicability, is without any substance with relation to the facts of the present case. As a matter of fact, the provisions of the New Code of Criminal Procedure are not being applied with retrospective effect. The new Code of Criminal Procedure came into force on 1-4-1974, and the present application was moved on 25.6.1974. It is thus, clear that the rights were being determined afresh by the learned Magistrate in view of these new provisions of the Code of Criminal Procedure 1973. The present application has, in fact no relevancy with the past proceedings which culminated under the old Code of Criminal Procedure. As no right, liability or obligation accruing under the old Criminal Procedure Code is being sought to be adjudicated under the Criminal Procedure Code, 1973, the provisions of Section 6(e) of the General Clauses Act have no relevancy whatsoever. The liability to pay maintenance to a divorced wife accrued for the first time after coming into force of the New Code of Criminal Procedure. This liability did not accrue under the old Criminal Procedure Code, and, as such, it cannot be held that the liability which accrued under the old Code of Criminal Procedure is sought to be enforced under the provisions of Section 125, Cr.P.C.

7. The contention of the learned Counsel for the applicant that the provisions of the Section 125, Cr.P.C. shall apply only 10 customary divorce, and not to divorce obtained through judicial proceeding this no substance. The provisions of Section 125. Cr.P.C. do not make any such distinction. A divorced wife, whether by the process of judicial decree or by customary practice, is a divorced woman for all purposes as contemplated under Section 125, Cr.P.C. The contention of the learned Counsel for the applicant that distinction must be drawn between customary divorce & judicial divorce, has, thus, absolutely no force. If such an interpretation would be made then social justice would be denied to such section of women who have been divorced through judicial proceeding. That law does not envisage any such distinction, and, as such, the contention of the learned Counsel for the applicant cannot be accepted.

8. The petitioner having sought to enjoy the luxury of a second wife should not feel shy in paying the maintenance to the divorced wife who has not yet contracted a second marriage. The logic behind Section 125, Cr.P.C. is to ameliorate the conditions of the women in general, and the provisions of rendering effective social justice to women, who have been divorced, cannot be denied by imaginary interpretations of this type. Under these circumstances, having given my most anxious consideration to the arguments advanced by the learned Counsel for the petitioner, I find myself unable to agree with them.

9. The revision petition has, thus, no merit and deserves to be dismissed. Ordered accordingly.


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