1. The petitioner is the respondent in a proceedings for maintenance filed by the respondent. The petitioner married the respondent on 16-9-62. A child was born to them in the wedlock. After the birth of the child, the respondent filed M.C 15 of 1967 alleging that the petitioner was neglecting to maintain her and the child. By the time the above petition came up for disposal, H.M.A 18 of 1967 had been filed by the petitioner against the respondent for restitution of conjugal rights, in the Sub Court, Trivandrum. The plea put forward by the respondent was that the petitioner had married a woman by name, Omana and was living with her. The Additional First Class Magistrate, who disposed of M.C 15 of 1967 observed:
“The main evidence to prove second marriage of C.P is that of Pw. 1 and Pw. 3. Both these witnesses are examined in HMA. 18/67 of Sub Court, Trivandrum which is a suit instituted for restitution of conjugal rights by CP. against the petitioner and that suit is pending disposal. Their evidence has to be evaluated and appreciated by the Civil Court Viz., Sub Court, Trivandrum and it will settle finally one way or other of the conjugal rights of both parties and, therefore, I consider it is not proper and as well unnecessary to discuss and appreciate their evidence in this case for coming to the conclusion whether the CP. has married another woman and under what all circumstances the petitioner is led to live separate from the CP. and I therefore keep this point open without finding and the petitioner will be at liberty to seek remedy in the light of the order in HMA. 18/67 of Sub Court Trivandrum”.
2. It would appear that HMA. 18 of 1967 was allowed. As there was non compliance of the order therein, the petitioner filed OP. (H.M.A) 6 of 1972 for dissolution of his marriage with the respondent. The petition was allowed on 21-6-74. The respondent thereafter filed M.C 5 of 1975 against the petitioner for maintenance under S. 125 of the Code of Criminal Procedure.
3. The petitioner in his counter denied his liability to maintain the respondent on the ground that while the marriage was subsisting, she refused to live with him for no valid reason. The order in M.C 15 of 1967 was also set up as a bar for the claim of maintenance. The contention was that since the court disallowed maintenance to the respondent in the above proceedings, there was issue estoppel and it was not open to her to claim maintenance after the divorce was effected. The other contentions raised are not relevant to this enquiry. The Chief Judicial Magistrate, Trivandrum, who disposed of the petition overruled the objections of the petitioner and allowed maintance at the rate of Rs. 45/- per month to the respondent. The said order was confirmed in revision by the Second Additional Sessions Judge, Trivandrum. The quashing of the above order is sought under S. 482 of the Code of Criminal Procedure.
4. S. 125 so far as it has application to the instant case reads:
“125. Order for maintenance of wives, children and parents—
(1) If any person having suffieisnt means neglects or refuses to maintain—
(a) his wife, unable to maintain herself, or
(d) ……………a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife……
Explanation:—For the purposes of this Chapter—
(a) xxx
(b) “wife” includes a woman who has been divorced by, has or obtained a divorce from, her husband and has not remarried.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due………
Provided further that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation:—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) 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 refuses to live with her husband, or if they are living separately by mutual consent.”
5. The contention of the petitioner is as follows: The respondent was refused maintenance in M.C 15 of 1967. She did not comply with the order for restitution of conjugal rights. In view of the order for restitution of conjugal rights, she would not have been granted maintenance if she had made a motion thereof during the subsistence of marriage A woman who has been divorced by her husband is not entitled to a higher right to maintenance than what she had when the marriage was in force. Therefore, the courts below acted in excess of their jurisdiction in ordering maintenance. An offer was made during the cross-examination of the respondent that the petitioner was willing to maintain in case she was prepared to live with him. The respondent was not prepared to do so. Hence there was no justification in awarding maintenance to the respondent.
6. Ext. D1 is the order in M.C 15 of 1967 and Ext. D2 is the order in H.M.A 6 of 1972. The consistent stand taken by the respondent is that the petitioner has taken a woman by name Omana and has got children born in that connection. Ext. D2 would also show that the respondent had a case that after the order in H.M.A 18 of 1967, she went to the house of the petitioner, but that she was turned out. The case was not accepted by the court as there was only the interested evidence of the respondent and her mother to support it. Reference was also made to an alleged admission by the respondent that she did not go to the petitioner's house after delivery.
7. It is true that the respondent did not produce reliable materials in support of her readiness to comply with the order for restitution of conjugal right. She was all along having a grievance that the petitioner was not faithful towards her. Although she did not succeed in proving that the petitioner and Omana were living together as husband and wife and have children, it is admitted by the petitioner that he has transferred his rights in the twenty cents of property which he got in partition in favour of Omana.
8. An order for restitution of conjugal rights by itself is not a ground for refusal of maintenance under S. 125 of the Code of Criminal Procedure unless it is made out that the person in whose favour it was made was willing to discharge his obligations as a husband and did not secure the order as a ruse to get rid of the wife in a subsequent proceedings for divorce. The petitioner in this case did not take any steps to enforce the order for restitution. No allegation of immorality is put forward against the respondent. It is not suggested that the respondent had any evil purpose in refusing to live with the petitioner. Therefore, her reluctance to live with the petitioner could as well be due to the unfavorable climate that was prevailing at the residence of the petitioner. In other words, there are grounns which may lead to show that even though the respondent lost in the forensic battle and was divorced by the petitioner her score is high in the moral field.
9. It may look obnoxious that a woman against whom an order for restitution of conjugal right was passed and was divorced following the order should be granted maintenance after divorce by her former husband. But it has to be borne in mind that the purpose of S. 125 of the Code of Criminal Procedure is to prevent vagrancy and it is the duty of Courts to advance that purpose. There are several grounds on which a husband may obtain a divorce from a wife. Divorce is permissible in a case where the wife is living in adultery; it is also allowed when the wife is suffering from a virulent disease. To direct a person to pay maintenance to his ex-wife in the former case would be revolting to one's sense of justice while to deny maintenance in the later case when the Statute provides for it would be unjust. It is not as if S. 125 of the Code of Criminal Procedure enjoins that the courts should award maintenance to all divorced wives. It is for the courts to make an assessment of the situation within the framework of the Statute and to see that the object of the Statute is served and at the same time there is no abuse of the process of court. The word ‘may’ in S. 125(1) Cr. P.C makes it clear that the grant of maintenance even in the case of a wife is a matter of discretion, the discretion being used in a judicial manner, in advancement of the purpose underlying the section. The identical principles will apply in the case of maintenance to a divorced woman.
10. The facts and circumstances of the present case do not show that the order of maintenance passed is improper as to deserve interference under the inherent powers of this Court. The petition is, therefore, dismissed.
11. Dismissed.