Criminal Revision No.52 of 2003(O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.52 of 2003(O&M) Decided on : March 09, 2010 Gurjit Kaur and others ... Petitioners VERSUS Gurmit Singh ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.A.S.Virk, Advocate for the petitioners. Mr.Narinder Dadwal, Advocate for the respondent. A.N.JINDAL, J.- This revision petition has arisen out of the order dated 25.9.2002 passed by Sub Divisional Judicial Magistrate, Phagwara, dismissing the application of Gurjit Kaur alias Sudarshan Kaur (petitioner No.1) wife of Gurmit Singh (respondent) and allowing the application of Rupinder Singh (petitioner No.2) son of the respondent, under Section 125 of the Code of Criminal Procedure and awarding maintenance of Rs.500/- per month to him, from the date of filing of the application. The main ground taken by the Trial Court while dismissing the application of the petitioner – wife for maintenance is that she being a divorced wife is not entitled to maintenance. The relevant observations Criminal Revision No.52 of 2003(O&M) [2] made by the Trial Court in the impugned order are as under:- “...Once a decree for dissolution of marriage between petitioner No.1 and respondent has already been passed because the present petitioner No.1 treated the respondent with cruelty, therefore, it cannot be said that petitioner No.1 is living separately from the respondent with sufficient cause.” Ultimately, it dismissed the application. The counsel for the petitioner – wife has urged that she has challenged the decree of divorce (Ex.R1) by filing FAO No.49-M of 2002, which is still pending adjudication in the High Court, therefore, the matter with regard to the dissolution still being sub-judice cannot be taken note of and the same could not be made a ground for declining the maintenance. The other plea taken by him is that even a divorced wife is entitled to get maintenance till she is not re-married. As regards the first contention, it may be observed that the respondent husband has also not denied the fact with regard to the pendency of the appeal, preferred by the petitioner against the decree of divorce passed by the Additional District Judge, Kapurthala, rather he has urged that since the maintenance pendente lite to the tune of Rs.2000/- has been awarded by the High Court vide order dated 6.2.2006 passed in the aforesaid appeal, therefore, no further maintenance could be awarded to the petitioner. In this background of the fact, I am constrained to hold firstly that in the light of the fact that the appeal against the judgment passing decree of divorce is pending adjudication in the High Court, therefore, the Criminal Revision No.52 of 2003(O&M) [3] same having become not final, could not be made a ground for declining the maintenance to the petitioner. As regards the entitlement of maintenance of a divorced wife, I need to reproduce the definition of wife as provided under Explanation (b) to sub-Section (1) of Section 125 CrPC, which reads as under:- “Explanation – For the purposes of this Chapter - (a) ... ... ... (b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.” Section 125 entitles a wife, child or parents, unable to maintain themselves, to seek maintenance. Wife, legitimate or illegitimate child (not being a married daughter)minor child and the parents, who are unable to maintain themselves are entitled to maintenance. As per clause (4) of Section 125, an exception has been made, which reads as under:- “(4) No wife shall be entitled to receive an allowance for the 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.” The Section nowhere provides if the divorced wife was not entitled to maintenance, rather as per Explanation (b) to sub-Section (1) of Section 125 of the CrPC `wife' includes divorced wife also. As such, Criminal Revision No.52 of 2003(O&M) [4] while taking the case from all the angles, the petitioner being the wife of the respondent, not re-married, and unable to maintain herself, is entitled to maintenance. With regard to the quantum of maintenance, it may be observed that the respondent has sufficient means to maintain himself and he is duty bound to maintain his wife (the petitioner). This High Court in FAO NO.49-M of 2002 also, after appreciating the means of income of the respondent, fixed maintenance pendente lite at the rate of Rs.2000/- per month. As such, it is held that the respondent husband would be liable to pay Rs.2000/- per month to the petitioner wife as maintenance from the date of application. However, it is made clear that the petitioner wife would be entitled to recover the maintenance amount awarded only by one Forum and the amount already recovered would be adjusted against the maintenance for that period. Petition stands allowed in the above terms. March 09, 2010 ( A.N.JINDAL ) `gian' JUDGE