THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1141 of 2005 Date: 27.08.2011 Between: B.N. Sivarama Krishna … Petitioner AND B. Hemalatha and another … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1141 of 2005 ORDER: The revision petitioner is the husband. The revision petitioner questions the order dated 21.06.2005 of the Additional Family Court, Hyderabad, granting monthly maintenance at Rs.1,000/- in favour of the wife, who is the first respondent herein, under Section 125 of the Criminal Procedure Code (Crl.P.C.). When the revision was laid, interim orders were passed on 19.07.2005 suspending the order of the trial Court in M.C.No.282 of 2004 subject to payment of Rs.500/- per month by the revision petitioner-husband to the first respondent-wife during the pendency of the revision. 2. The marriage between the revision petitioner- husband and the first respondent-wife was dissolved on 30.11.1999, through a decree of divorce granted by the Judge, Family Court, Hyderabad in O.P.No.401 of 1996. The revision petitioner and the first respondent have a son and a daughter. The son is a mentally challenged person. At the time of granting divorce, the Family Court, Hyderabad granted maintenance at the rate of Rs.300/- per month payable to each of the children by the revision petitioner-husband, since the children were staying with the wife. The order was passed by the Family Court by exercising its powers u/s.25 of the Hindu Marriage Act. No maintenance was awarded in favour of the wife. The ground on which the divorce was granted was that the wife deserted the husband. 3. Subsequently, the wife filed M.C.No.282 of 2004 on the file of the Additional Family Court, Hyderabad. The orders therein are assailed presently. 4. The point for consideration is whether the orders are sustainable or not and whether there is any error apparent in the said orders. 5. Fundamentally, Sri G.L. Nageshwara Rao, learned counsel for the revision petitioner-husband contended that when the wife deserted the husband, the wife would not be entitled to maintenance, in view of the prohibition u/s.125 (4) Cr.P.C. On the other hand, Sri G. Srinivas, learned counsel for the first respondent- wife submitted that Sec.125 Cr.P.C. does not apply to a divorced wife and that the maintenance granted by the Family Court could not be reduced by this Court in its revisional jurisdiction. I may straight away point out that the learned counsel for the revision petitioner husband is not seeking for the reduction of the quantum of maintenance. He is seeking for the cancellation of the maintenance order on the ground that the wife is covered by Sec.125 (4) Cr.P.C. 6. As already pointed out, the order was passed on 19.07.2005 directing the husband to pay interim maintenance at Rs.500/- pending disposal of the revision. The learned counsel for the first respondent-wife submitted that the husband paid maintenance at Rs.500/- per month to the first respondent-wife till March, 2007 only and committed default in payment of maintenance thereafter. Where there is default on the part of the revision petitioner-husband in complying with the interim directions of this Court, the present revision, in fact, is liable to be dismissed in limini. However, I propose to examine the case on merits as well. 7. Inter alia, it is pointed out by the learned counsel for the first respondent-wife relying upon Ashoka Dutta Gupta and another v. Sujit Dutta Gupta and another[1] that there is no justification for the High Court to reduce the maintenance granted by the trial Court in exercise of powers u/s.125 Cr.P.C. This decision, however, is redundant for the purpose of the present case for the reasons already mentioned, viz., that the petitioner- husband has not been seeking for the reduction of the quantum of maintenance. 8. The learned counsel for the revision petitioner-husband placed reliance upon 125 (4) Cr.P.C. Section 125 (4) Cr.P.C. reads: “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.” Section 125 (4) Cr.P.C. creates an embargo that the wife who has been living in adultery or has refused to live with the husband without sufficient reason would not be entitled to award of maintenance u/s.125 Cr.P.C. This is the forte of the learned counsel for the revision petitioner. The learned counsel for the revision petitioner placed reliance upon Deb Narayan Halder v. Anushree Halder [2]. In that case, the wife left the matrimonial home without any justifiable grounds. The Supreme Court held that the wife would not be entitled to maintenance. It may be noticed that the marriage between the wife and the husband in Deb Narayan halder’s case was subsisting at the time the wife sought for maintenance from the husband. 9. A plain reading of Section 125 (4) Cr.P.C. leads to an inference that the embargo would apply if the marriage between the wife and the husband has been subsisting. Sec.125 (1) Cr.P.C. explanation (b) defines ‘wife’ to include a divorced wife, but has not remarried. However, the question of the wife staying away from the husband without justifiable reasons would arise only when the marriage is subsisting between the wife and the husband. If the marriage has already been dissolved, the question of wife residing or not residing with the husband would not arise. The other embargo that the wife should not be living in adultery, however, would apply to even a divorced wife in respect of Sec.125 (4) Cr.P.C. 10. The Supreme Court had occasion to examine the application of Section 125 (4) Cr.P.C. to a divorced wife. In that case, the Supreme Court observed that ‘wife’ did not include a divorced woman u/s.125 (4) Cr.P.C. Thus, the Supreme Court went to the extent of explaining u/s.125 (4) Cr.P.C. holding that the definition ‘wife’ on the whole does not apply to Sec.125 (4) Cr.P.C. 11. As already pointed out, the learned counsel for the revision petitioner-husband contended that the wife, who has deserted the husband, would not be entitled to maintenance in view of Section 125 (4) Cr.P.C. and that the first respondent, therefore, would not be entitled to maintenance. In view of the decision of the Supreme Court in Vanamala v. H.M. Ranganatha Bhatta[3], the contention of the learned counsel for the revision petitioner-husband cannot be accepted. 12. The learned counsel for the first respondent also placed reliance upon Chaturbhuj v. Sita bai[4] to speak about the object of Section 125 Cr.P.C. The Supreme Court observed: “Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal[5] falls within constitutional sweep of Article 15 (3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [6].” 13. At any rate, the object of Section 125 Cr.P.C. does not decide the fate of this case. Admittedly, the marriage between the petitioner and the first respondent was deserted by a decree of divorce. Admittedly, the grant of divorce was that the wife deserted the husband. The question, therefore, is whether such a wife would not be entitled to seek maintenance. In view of Vanamala, I agree with the contention of the learned counsel for the first respondent-wife that the wife, even though she was guilty of desertion before divorce, is entitled to claim maintenance. The grant of maintenance by the trial Court, consequently, is justified and needs no interference. 14. Thus, on merits also, the order of the trial Court is sustainable. Both on merits and on technical grounds, the revision is not maintainable. The Criminal Revision Case, consequently, is dismissed. The first respondent-wife is entitled to invoke the provisions of Sec.127 Cr.P.C. for recovery of maintenance from the husband. ________________ K.G. SHANKAR, J Date: 27.08.2011 Isn [1] (2000) 9 SCC 193 [2] (2003) 11 SCC 303 [3] (1995) 5 SCC 299 [4] (2008) 2 SCC 316 [5] (1978) 4 SCC 70 : 1978 SCC (Cri) 508 : AIR 1978 SC 1807 [6] (2005) 3 SCC 636 : 2005 SCC (Cri) 787 : (2005) 2 Supreme 503