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Case Number

Cr. P. No. 2518 of 1985

Attorney(S)

Sankatha Rai, for Applicant
A.G.A for the opposite parties.

Judges

V.P Mathur, J.

Acts

SECTION 125 CRIMINAL PROCEDURE CODE
Section 125 (4) of the Criminal Procedure Code
Section 125 and sub-clause (4)
Section 125 (1) of the Code
Section 125, Cr. P.C

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Smart Summary

Judgment Summary — V.P. Mathur, J.

Factual and Procedural Background

Smt. Pushpa Mishra (who claims to be the wife of Madhusudan Mishra) filed petition No. 178/12 of 1983 under Section 125 of the Criminal Procedure Code alleging that since 1973 her husband had neglected to maintain her, that he was living with another woman, and that he had an income of not less than Rs. 1,000 per month; she sought maintenance of Rs. 500 per month.

Madhusudan Mishra contested the petition, asserting that the wife had deserted him, had not returned despite a decree for restitution of conjugal rights, and that he had obtained a decree dissolving the marriage; he further said the wife was educated (double M.A), had worked as a teacher and was capable of earning, and contended his own income was only about Rs. 700 per month with family dependents.

The trial Magistrate (Mr. Shyam Vinod, VIIth Munsif Magistrate, Farrukhabad) after recording evidence on 13-10-1983 awarded Smt. Pushpa Mishra maintenance of Rs. 200 per month from the date of judgment. The husband filed the present revision challenging that order.

Legal Issues Presented

Whether a divorced wife (who has not remarried) is entitled to maintenance under Section 125, Cr. P.C., even if her husband has obtained a decree for restitution of conjugal rights and subsequently a decree for dissolution (divorce).
Whether Smt. Pushpa Mishra is unable to maintain herself such that she is entitled to maintenance under Section 125, Cr. P.C.
Whether the husband is in a position to pay maintenance having regard to his declared income and his family responsibilities.

Arguments of the Parties

Appellant (Madhusudan Mishra)

The wife herself deserted him and, despite a decree for restitution of conjugal rights, did not return; he later obtained a decree dissolving the marriage, and therefore she is not entitled to maintenance.
The wife is a double M.A, has worked as a teacher and is now working as Manager in an Educational Institution, and is capable of earning her own livelihood; accordingly she should not receive maintenance.
His income is hardly Rs. 700 per month and he must maintain a family of seven (including aged mother, sister and her two children, and an insane brother-in-law), so he is not in a position to pay maintenance.

Respondent (Smt. Pushpa Mishra)

She contends that since 1973 the husband neglected to maintain her and that he is living with another woman.
She claims the husband has income (alleged not less than Rs. 1,000 per month) and seeks maintenance of Rs. 500 per month.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smt. Mahtab Begum v. Ansar Ahmad, 1986 23 A.C.C 293	Supports that maintenance under Section 125 is premised on neglect or refusal to maintain; where husband offers maintenance on condition of wife living with him and she refuses, and a decree for restitution exists with a finding that wife had no reasonable ground to live separate, maintenance cannot be granted (proviso to sub‑section (2)).	The court accepted the legal position stated in this authority but distinguished it because Section 125 also covers divorced wives; the court noted the broader statutory definition and proceeded to apply other authorities and facts in the case.
Prakash Chandra Verma v. Smt. Prakashwati, 1983 20 A.C.C 258	Held that a wife who has applied under Section 125 is not disentitled to maintenance merely because the husband has obtained a decree of divorce or a decree for judicial separation; a person with means must maintain a divorced wife who has not remarried and the ground of divorce is immaterial.	The court relied on this case to support the proposition that dissolution of marriage does not automatically disentitle a divorced wife from maintenance under Section 125, and that the decree's grounds are immaterial.
Bai Tahira v. Ali Husain Fissalli Chothis, A.I.R. 1979 S.C. 363	Considered Explanation (b) to Section 125(1) and held that every divorced wife, otherwise eligible, is entitled to maintenance; dissolution of marriage does not affect this right under the Code.	The court cited this Supreme Court authority to reinforce that divorced wives who satisfy eligibility conditions are entitled to maintenance under Section 125.
Sayed Mukhtar Ahmad v. Smt. Moonia Fatma, 1981 A.C.C 224	Observed that once divorced (or divorced by husband), a wife becomes entitled to claim maintenance provided she is unable to maintain herself and the husband neglects her; rights end if she remarries, lives in adultery, or surrenders the right.	The court used this authority to list and apply the conditions under which a divorced wife may lose the right to maintenance; it observed none of those disqualifications applied in this case.
Smt. Shanti Devi v. Basant Lal, 1984 21 A.C.C 105	The court (this Court) took the same view as Prakash Verma regarding maintenance rights of divorced wives under Section 125.	The present court noted that it had followed the Prakash Verma principle in that earlier decision and applied the same reasoning here to hold that a divorced wife may be entitled to maintenance.

Court's Reasoning and Analysis

The court proceeded through a sequence of statutory interpretation, factual assessment, and application of precedent as follows:

Statutory definition and disqualifications: The court observed that Explanation (b) to Section 125 defines "wife" to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The court also quoted clause (4) of Section 125, which disqualifies a wife from receiving allowance if she is living in adultery, or has without sufficient reason refused to live with her husband, or if they live separately by mutual consent.
Relevance of restitution and divorce: The court recognized the legal position (citing Mahtab Begum) that if a husband offers to maintain a wife on condition of living with him and she refuses to live with him where a restitution decree found no reasonable ground for separation, maintenance may be refused. However, the court distinguished that situation from the present facts because the husband went beyond obtaining a decree for restitution of conjugal rights and obtained a decree for dissolution (divorce): after dissolution the wife cannot be required to return, which the court treated as a sufficient reason under Section 125(4) for her not to return.
Precedential support for divorced wife's entitlement: The court relied on multiple authorities (Prakash Chandra Verma, Bai Tahira, Sayed Mukhtar Ahmad and its own earlier decision in Smt. Shanti Devi v. Basant Lal) to hold that a divorced wife otherwise eligible is entitled to maintenance under Section 125 and that the ground on which divorce was obtained is immaterial to a claim for maintenance.
Assessment of wife's capacity to maintain herself: The court examined the evidence on the wife's earning capacity. She had been employed as a teacher from 1972–1977 on meagre wages (Rs. 60–70 per month) and the court found that this temporary, low-paid employment and the later "honorary" managerial role did not demonstrate an ability to maintain herself. Thus the court concluded she was unable to maintain herself.
Assessment of husband's means and ability to pay: The husband stated a salary of Rs. 700 per month at one point and an "all inclusive" figure of Rs. 1,200 per month earlier; the court noted that his emoluments had been revised upwards since then and that he was a Professor. Even accounting for his family obligations, the court concluded he could reasonably set aside Rs. 200 per month for the divorced wife's "bare maintenance."
Conclusion on relief: Taking the statutory framework, precedent, the absence of disqualifying factors (no remarriage, no allegation of adultery, no surrender), and the factual findings about earning capacity and husband's income, the court found no merit in the husband's revision and affirmed the maintenance award at Rs. 200 per month.

Holding and Implications

Holding: The revision preferred by Madhusudan Mishra was dismissed and the maintenance order in favour of Smt. Pushpa Mishra in the amount of Rs. 200 per month was upheld.

Implications:

Direct effect: The husband is required to pay Rs. 200 per month to Smt. Pushpa Mishra (the divorced wife) for her maintenance from the date fixed by the trial court (the original order awarded Rs. 200 per month from the date of that judgment, and the revision challenging that order was dismissed).
Statutory and precedential position reiterated: The court reiterated that a divorced wife who has not remarried and who is otherwise eligible may claim maintenance under Section 125, Cr. P.C., and that the fact of dissolution of marriage does not by itself disentitle her to such maintenance; disqualifications under Section 125(4) must be specifically established to deny maintenance.
No new legal principle: The decision applies existing statutory interpretation and precedents to the facts; the opinion does not purport to announce a new precedent beyond confirming and applying established authorities.

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Madusudam Mishra v. State Of U.P And Others

V.P Mathur, J.— Smt. Pushpa Mishra who claims to be the wife of Madhusudan Mishra started proceedings under Section 125, Cr. P.C through a petition which was numbered as 178/12 of 1983. Her contention was that since 1973 her husband Madhusudan Mishra had neglected to maintain her and she is unable to maintain herself. The husband is living with another woman. He has an income of not less than Rs. 1000/- per month and, therefore, she claims maintenance to the extent of Rs. 500/- per month.

2. Contest was put by Madhusudan Mishra and he took the stand that Smt. Pushpa Mishra who was his married wife herself him and thus caused a desertion and inspite of a decree for restitution of conjugal rights she did not return and ultimately he had to obtain a decree of dissolution of marriage by way of divorce and now she is not entitled to any maintenance from him. It was also said that she was a double M.A and had been a teacher for sometime while now she is working as Manager in an Educational Institution and was capable of earning her own livelihood and so also she was not entitled to any maintenance allowance.

3. Lastly, it was contended that his income is hardly Rs. 700/- permonth and he has to look after a family of seven members including aged mother, sister and her two children and an insane brother-in-law and, therefore, also he was not in a position to pay anything.

4. The matter came up before Mr. Shyam Vinod, VIIth Munsif Magistrate, Farrukhabad and after recording evidence on 13-10-1983 he granted to Smt. Pushpa Misbra a maintenance amount of Rs. 200/- per month from the date of his judgment. Against this order the present revision has been preferred by Madhusudan Mishra.

5. Now the established facts are that the parties were married sometime in 1971. They lived as husband and wife for a short duration but according to the husband the marriage was not consummated. Thereafter they separated and the lady first lived with her parents and is now living in Farrukhabad. For a period of five years, between 1972 and 1977, she was a teacher in an Educational Institution. She is double M.A The husband's monthly income is of Rs. 1200/- and the husband first obtained a decree for restitution of conjugal rights and when the wife did not obey it, he has also obtained a decree for dissolution of marriage by way of divorce and hence the lady was not entitled to any relief.

6. The case of Smt. Mahtab Begum… v. Ansar Ahmad…. 1986 23 A.C.C 293., has been cited to support the argument that a claim for maintenance under Section 125 Cr. P.C has for its premise neglect or refusal of the spouse to maintain the wife and in view of the proviso to sub-section (2) if the husband offers to maintain his wife on the condition of her living with him, and she refuses to live with him, and the claim of the husband for restitution of conjugal rights exists on the finding that the wife had no reasonable ground to live separate from the husband, maintenance cannot be granted.

7. There is no quarrel with this legal position. But Section 125 of the Criminal Procedure Code clearly lays down that for the purpose of that provision of law a divorced wife will also be entitled to maintenance like a wife. My attention was, however, drawn to the fact that the divorce was granted because the wife did not obey the decree for restitution of conjugal rights and, therefore, she shall not be entitled to any maintenance because the husband was always ready and prepared to keep her and it was she who failed to honour the decree for restitution of conjugal rights also. My attention was invited to clause (4) of Section 125 of the Criminal Procedure Code which may be extracted as follows:—

“No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refused to live with her husband, or if they are living separately by mutual consent.”

8. With reference, to this sub-clause (4) it is pointed out that there is no sufficient reason on the part of the wife to live separate from the husband now.

9. There is an authority in support of the contention of the wife that she is entitled to maintenance. Explanation (b) appended to Section 125 Cr. P.C lays down that a ‘wife’ includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Obviously Smt. Pushpa Mishra will be covered by the definition of wife as given in Section 125 and sub-clause (4) will also be clearly applicable to her case and she will have to show that she is not returning back to husband for sufficient reasons. Only then she will be entitled to maintenance till the time she remarries. In the case of Prakash Chandra Verma v. Smt. Prakashwati 1983 20 A.C.C 258., it was held that a wife who has applied for maintenance under Section 125 is not disentitled to maintenance if she has not remarried, merely on account of the fact that the husband has obtained a decree of divorce or a decree for judicial separation on the ground of desertion. To quote a portion of that judgment:—

“Under Section 125 (1) (a) a person having sufficient means is under an obligation to maintain not only his wife but also his divorced wife who has not remarried. The ground on which the decree for divorce was obtained is immaterial. Thus even though the decree for divorce was obtained by the husband on the ground of desertion of the wife he is required to maintain the divorced wife under Section 125 (1) (a). Similarly, the finding of desertion by the wife in granting a decree for judicial separation is of no conesquence in proceedings under Section 125 initiated after the decree for judicial separation is granted as the decree itself is sufficient reason for the wife not to live with her husband after it is passed.”

10. In the case of Bai Tahira v. Ali Husain Fissalli Chothis A.I.R 1979 S.C 363., the effect of Explanation (b) to Section 125 (1) of the Code was Considered and it was held that it was clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the Code. In another case of Sayed Mukhtar Ahmad v. Smt. Moonia Fatma 1981 A.C.C 224., the observation was to the effect that once the husband divorces his wife or the wife obtains a divorce from her husband she becomes entitled to claim maintenance from her ex-husband provided she is unable to maintain herself and the husband has neglected to maintain her. Her right to claim maintenance would come to an end only if she remarries or lives in adultery or if she voluntarily surrenders her right to maintenance.

11. This Court also took the same view relying upon the case of Prakash Verma v. Smt. Prakashwati (Supra) in the matter of Smt. Shanti Devi v. Basant Lal 1984 21 A.C.C 105.. Therefore, the matter rests there and it has to be held that a divorced wife is also entitled to maintenance provided she is unable to maintain herself and the husband is neglecting her to do so and she has not remarried or surrendered her right or is not living in adultery. None of these allegations has been made in contest of the present petition. This lady has neither remarried nor there is any allegation that she is living in adultery. We will shortly see whether she is able to maintain herself but this much is certain that so far as the husband is concerned, he has not paid a single pie to her towards maintenance. The mere fact that a decree for dissolution of marriage and separation has been obtained will not affect the wife's right even though a decree had been obtained for restitution of conjugal rights. If the husband had stopped after obtaining a decree for restitution of conjugal rights alone, the wife would not have had the right to seek maintenance because then she was under an obligation to return with the husband and live with him but the husband has gone further. He has obtained a decree for dissolution of marriage by way of divorce and after this wife cannot return back to him and this is a sufficient reason as contemplated under Section 125 (4) of the Criminal Procedure Code to entitle the wife to say that now she cannot go back and the husband will be bound to maintain her; other things remaining the same.

12. The only evidence which has been brought on record is that for a short duration of few years this lady was employed in an Educational Institution on paltry amount of Rs. 60/- or 70/- per month. Undoubtedly she is well educated lady having taken her M.A in two subjects and inspite of that if she was able to get employment on a mere monthly salary of Rs. 60 - or Rs. 70/- only, then it can be said that she is as well unemployed. Considering her merit and husband's status this small amount of Rs. 60/- or Rs. 70/- could not have been sufficient for the maintenance and it has also ceased to be available now, as admittedly she is no more a teacher. It appears that it was a very temporary affair and the lady has not been able to get a permanent appointment giving her satisfactory earning, so as to enable her to maintain herself. She is working as a Manager of an Educational Institution now and the evidence is that, that is an honorary work. The husband is, therefore, bound to manintain her and there can be no escape from the couclusion that she is unable to maintain herself. The husband is a Professor.When his statement was recorded he gave out his salary to be Rs. 700/- per month and all inclusive he was drawing Rs. 1200/- per month then. Since then there has been revision in emoluments all along and it is definite that he is getting more salary than what he was getting so many years back. Under these circumstances, even if he has to maintain a family of 7 or 8 member, he can set apart Rs. 200/- per month for Smt. Pushpa Mishra, who is his divorced wife in order to ensure her bare maintenance. As such I do not find any force in this revision, which stands dismissed accordingly.

Madusudam Mishra v. State Of U.P And Others

Judgment Summary — V.P. Mathur, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Madhusudan Mishra)

Respondent (Smt. Pushpa Mishra)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Madusudam Mishra v. State Of U.P And Others

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