IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.831 of 2007 MAMTA SINHA & ANR Versus STATE OF BIHAR & ANR ----------- 6 18.09.2008 The revision application has been preferred by the wife against the order dated 25.4.2007 passed by Family Court, Jehanabad in Misc. Case no. 14/2005 whereby the prayer for maintenance under section 125 of the Cr.P.C. to the petitioner has been rejected. Heard learned counsel for the parties. It appears from the record that Mamta Sinha filed a petition under section 125 of Cr.P.C on her behalf and also on behalf of her minor daughter against the opposite party no. 2 Manoranjan Kumar for grant of maintenance of Rs. 2,000/- each per month. The grounds of maintenance is torture, both mentally and physically as well as solemnization of second marriage of Opposite party no. 2 with one Pinki Devi. The learned Lower Court after conducting inquiry granted maintenance to minor daughter of the petitioner namely Khushi Kumari @ 800/- per month but rejected the prayer of maintenance to this petitioner. It is submitted on behalf of the petitioner that the impugned order is bad and illegal. Admittedly, the petitioner is a legally wedded wife of opposite party no. 2. She is living separately because of torture meted out to her both mentally and physically. The opposite party no. 2 has also entered into second marriage with - 2 - one Pinki Devi. It is further submitted that the Court below has wrongly refused to grant maintenance to the petitioner on ground of obtaining ex parte divorce decree by the O.P. no. 2. It is further submitted that in view of the decision of the Supreme Court rendered in 2000 S.C. page 952, petitioner is entitled to get maintenance at least from the date of divorce. On the other hand, learned counsel for the opposite party no. 2 submitted that the Court below has rightly rejected the prayer for maintenance of the petitioner. The petitioner voluntarily left the house of opposite party and started to lead adulterous life with her brother-in-law. Ultimately, the opposite party no. 2 was forced to file Divorce Suit which has been allowed on the ground of adultery vide order dated 25.4.2007 passed in Miscellaneous Case no. 14/2005. Considering the submission of learned counsels for both the parties and also perused the impugned order, it is quite clear that the maintenance has been denied to the petitioner on the ground that the O.P. no. 2 has already taken divorce and the divorce decree has been passed on the ground of adultery. Explanation (b) of sub-section (1) of Section 125 of Cr.P.C. would go to show that the word “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Therefore, in view of the above definition, the divorcee wife is also entitled to get maintenance. However, it is submitted by the learned counsel for the opposite party that since the petitioner is leading adulterous life, she is not - 3 - entitled to get maintenance in view of the subsection (4) of Section 125 Cr.P.C. Question as to whether bar of sub-clause (4) of section 125, Cr.P.C. is also applicable against a divorcee to claim maintenance, has been considered by the Supreme Court in the aforesaid decision reported in A.I.R. 2000 S.C. page-952. In paragraph 9A and 10 of the decision is relevant which runs as follows: “Para-9A: Claim for maintenance under the first part of Section 125, Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125, Cr.P.C.. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125, Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife.(See : Sukumar Dhibar v. Smt. Anjali Dasi, 1983 also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position. Para 10: Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as woman has to distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another - 4 - capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her. From the above decision of the Supreme Court, it is quite clear that bar of Section 125(4) is not applicable to the divorced woman and she is entitled to claim maintenance from her ex- husband. In this view of the decision of the Supreme Court, it is quite apparent that the decision of the Lower Court is illegal and bad in law. In spite of divorce, the petitioner is entitled to get maintenance from her husband from the date of divorce. Accordingly, this revision application is allowed and impugned order relating to rejection of maintenance to the petitioner is hereby set aside. Having regard to the facts and circumstances of the case as well as the income of the opposite party no. 2, as discussed in the impugned order, the opposite party no. 2 is directed to pay maintenance to the petitioner @ Rs. 1,000/- (one thousand) per month from the date of divorce i.e. 25.4.2007. The arrear amount must be paid to the petitioner within three months in three equal installments and the present and future maintenance by 15th day of each next following month. pkj (Ghanshyam Prasad,J)