Even if a wife is divorced by husband on the ground of desertion, she is entitled to maintenance

Dr Swapan Kumar Banerjee Vs The State of West Bengal and Anr

Supreme Court

19/09/2019

CRIMINAL APPEAL NO(S).232-233 OF 2015

About/from the judgment:

The court, 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.

 

The bench referred to the two judge bench judgments in Vanamala Vs. H.M. Ranganatha Bhatta and Rohtash Singh Vs. Ramendri and a three judge bench decision in Manoj Kumar Vs. Champa Devi, in this regard. Rejecting the request for a re-consideration by larger bench, the bench said:

 

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

 

In Dr. Swapan Kumar Banerjee vs. State of WB, The contention of the petitioner was that, no wife, who has deserted her husband can claim maintenance under Section 125 of the Cr.P.C. His argument was that, since in terms of the explanation 'wife' includes a 'divorced woman', therefore, even a wife who has been divorced on the ground of desertion would not be entitled to maintenance in view of sub-section (4) of Section 125 CrPC. Sub-section (4) provides that no Wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

 

Rejecting the said interpretation made, 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.

 

In this case, the husband was granted divorce on the ground of desertion. He got remarried after a year and it was only thereafter that the wife filed a petition for grant of maintenance. On this issue, the bench noted:

 

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

 

Another contention in this case was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. The bench noted that no evidence has been led by husband to show what is the income of the wife or where the wife is working, though it was for him to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself, the bench said.

Read the Judgment

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