“The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him.”
The Supreme Court has observed that a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.
The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose, refusing the plea to refer this issue to a larger bench, observed that this view has been consistently taken by the Supreme Court and is in line with both the letter and spirit of the Criminal Procedure Code.
Firstly, the view taken in the first two judgments has been confirmed by a three-judges Bench and, therefore, we cannot refer it to a larger Bench. Even otherwise, this view has been consistently taken by this Court and the said view is in line with both the letter and spirit of the Cr.P.C.
Contention that the divorced wife is under a compulsion to live with the ex-husband Illogical
Rejecting the said interpretation made by Advocate Banerjee, the bench observed:
No Doubt, as urged by Mr. Debal Banerjee, explanation II to Section 125 of the Cr.P.C. by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 of the Cr.P.C. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him.
It is for the wife to decide when she wants to file a petition for maintenance.
That, according to us, will make no difference because it is for the wife to decide when she wants to file a petition for maintenance. She may have felt comfortable with whatever earnings she had upto that time or may be she did not want to precipitate matters till she was contesting the divorce petition by filing a claim for maintenance. Whatever be the reason, the mere fact that the wife did not file a petition for grant of maintenance during the pendency of the matrimonial proceedings, is no ground to hold that she is not entitled to file such a petition later on.
No presumption can be raised that the wife is earning sufficient amount to support herself.
|Source : Livelaw.com|