IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 RPFC.No. 11 of 2003() --------------------- M.C.NO.199 OF 1998 OF FAMILY COURT, ERNAKULAM .................... (S): REVISION PETITIONER (PETITIONER): ----------------------------------------------------- M.P. MARY, D/O. PAILY, MALIAKKAL HOUSE, KARUKIDOM P.O., MUVATTUPUZHA. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS: --------------------------- V. VARGHESE, KOCHERIL HOUSE, OORAMANA P.O., MEMURI VILLAGE, MUVATTUPUZHA. ADV. SMT.M.MEENA JOHN FOR R THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.C.No.11 of 2003 ------------------------------------- Dated this the 29th day of September, 2008 ORDER What is the effect and consequences of a decree for judicial separation under Sec.22 of the Indian Divorce Act (for short `the Act') ? What impact, does such a decree have on the subsequent claim of a wife for maintenance under Sec.125 Cr.P.C.? These questions arise for consideration in this RP(FC). 2. On basic facts, it appears that there is no dispute. The petitioner and the respondent are spouses. Their marriage took place on 2/9/1979. A child was born in the wed-lock. That child has already attained majority. The spouses started separate residence from 15/7/1980. The husband filed an application for divorce on the ground of cruelty. That was dismissed. Later, he filed an application for decree of judicial separation. That was also rejected. He renewed his prayer for a decree for judicial separation and the same was allowed later by order dated 10/4/96. Decree was granted for judicial separation. But there was a direction that the respondent/ husband must pay an amount of Rs.750/- each per mensem to the wife and their R.P.F.C.No.11 of 2003 2 minor daughter. An appeal was preferred and by judgment dated 3.4.97 in M.F.A.No.697/96 the direction to pay maintenance to the wife was set aside as agreed. But it was observed that “it was agreed between the parties that the disposal of the appeal will not prejudice the right of the respondent/wife to claim maintenance separately under Sec.125 Cr.P.C.” 3. It was thereafter that the present claim for maintenance was filed by the wife. She claimed an amount of Rs.500/- per mensem as maintenance. 4. This application was opposed by the respondent/ husband. He contended that in the light of the decree for judicial separation which has become final, he is not liable to pay any maintenance. Significantly, as I shall later advert to, there was no offer to maintain the wife on condition that she lives with the husband. Parties went to trial on these contentions. The claimant/wife examined herself as P.W.1. She proved Exts.P1 to P3. Ext.P1 is a copy of the petition filed by the husband for judicial separation. Ext.P2 is the order passed by the Division Bench dated 3.4.97 in M.F.A.No.697/96. Ext.P3 was introduced in evidence by the claimant/wife in support of a contention which she raised when examined as a witness that the respondent – her R.P.F.C.No.11 of 2003 3 husband has married again and has begotten a child in that marriage. Ext.P3 is the copy of the birth certificate of the child so born in that alleged subsequent relationship. The husband did not adduce any evidence. Significantly he did not attempt to explain Ext.P3. 5. The learned Judge of the Family Court by the impugned order took the view that the wife is not entitled for maintenance she having already been held to be guilty of the matrimonial indiscretion of desertion and the husband having already secured a decree for judicial separation on the basis of such matrimonial misconduct on the part of the wife. Accordingly, the learned Judge of the Family Court proceeded to dismiss the claim for maintenance under Sec.125 Cr.P.C. 6. The learned counsel for the petitioner assails the impugned order on various grounds. It is contended that the securing of a decree for judicial separate reveals that the husband was not interested in cohabitation. Such a husband cannot later on turn round and advance a contention that the wife is residing separately without just or sufficient cause. The decree for judicial separation is itself sufficient cause. The absence of any offer to maintain her convincingly justifies the separate residence. Ext.P3 confirms the husband's remarriage R.P.F.C.No.11 of 2003 4 and birth of a child in such subsequent marriage. It is, in these circumstances, contended that even accepting all the contentions, the claimant/wife is entitled for maintenance. 7. The learned counsel for the respondent, on the other hand, contends that it having already been concluded by a decree of a competent civil court that the wife is guilty of the matrimonial misconduct of desertion and the husband having already secured a decree for judicial separation, the wife is not entitled to claim maintenance under Sec.125 Cr.P.C. 8. I have considered all the relevant contentions. The records have been perused by me. I shall now proceed to advert to the various contentions raised by the learned counsel for the rival contestants. 9. First of all, there is an attempt to contend that the parties had agreed that an application under Sec.125 Cr.P.C. would be maintainable. This is evident from the judgment dated 3.4.97 in M.F.A.No.697/96, it is contended. A copy of the same has been marked as Ext.P2 and I have already extracted the relevant statements in para-2 of the said judgment. I am unable to agree that the said agreement would in any way advance the case of either contestant. What is agreed, to extract the words of the Division Bench was as follows: “It is also agreed between R.P.F.C.No.11 of 2003 5 the parties that the disposal of this appeal will not prejudice the right of the respondent/wife to claim maintenance separately under Sec.125 of the Cr.P.C.” This agreement does not at all amount to any admission of the existence of a right or otherwise to claim maintenance under Sec.125 Cr.P.C. It only means that the claim can be raised and the same will have to be disposed of in accordance with law. The agreement referred to in Ext.P2 cannot, in these circumstances, advance the case of either party. 10. Secondly, there is a contention that the respondent having secured a decree for judicial separation, the same must be reckoned as a decree for divorce and consequently the wife would fall within the sweep of Explanation-(b) to Sec.125 Cr.P.C. It is contended that if a wife whose husband has secured a decree for divorce against his wife under Sec.10 of the Indian Divorce Act would fall within the sweep of the Explanation-(b), a wife against whom a decree for judicial separation has been passed must also be held entitled to such a relief. Reliance is placed on the decision of this Court in Raji C. Moncy v. Lissa K. Jacob (2001(1) KLJ 650), ie. (2001(2) KLT SN 44). The learned counsel for the respondent promptly points out that this contention is not available as a later single Judge decision of this Court in Thomas Kuriakose v. Abraham Mary (2003(2) KLT R.P.F.C.No.11 of 2003 6 41) has chosen not to follow the decision in 2001(2) KLT SN 44 and has taken the view that the decree for judicial separation cannot be equated to a decree for divorce. I am in complete agreement with the decision in Thomas Kuriakose (supra). In a decree for judicial separation the marital tie remains in tact without severance. That is the crucial distinction between a decree for judicial separation and a decree for divorce. It will be apposite in this context to refer to Section 22 of the Act. It reads as follows: “22. Bar to decree for divorce a mensa et toro but judicial separation obtainable by husband or wife:- No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery or cruelty or desertion for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.” (emphasis supplied) 11. It is crucial to note that a decree for a divorce a mensa et toro is not equivalent to a decree for divorce. The mere fact that under the English law as amended later a decree for divorce a mensa et toro has been recognised as a decree for divorce is no reason for this Court to equate a decree for judicial R.P.F.C.No.11 of 2003 7 separation to a decree for divorce. Section 7 of the Act has been deleted and it has been held by a Division Bench of this Court in Saly Joseph v. Baby Thomas [1999(1) KLT 74] that the decisions of the English Parliament cannot be held to be binding or having any impact on the law of India after independence. In any view of the matter it is evident from Section 22 of the Indian Divorce Act that a decree for judicial separation cannot be equated to a decree for divorce. The marital tie subsists and therefore the two decrees - those under Sections 10 and 22 must be held to be totally different in content and scope. It is easy hence to come to the conclusion that a wife who has secured a decree by judicial separation or one against whom a decree for judicial separation has been passed is not one falling within the sweep of Explanation (b) to Section 125 Cr.P.C. She is not a deemed wife but a real wife who continues to be the spouse admittedly. 12. It will now be apposite to ascertain the nature, effect and consequences of a decree for judicial separation. Section 22 of the Act says that it shall have the effect of a decree for divorce a mensa et toro and such other legal effect as hereinafter mentioned. Chapter V of the Act - having Sections 22 to 26, does not at all refer specifically to the obligation to cohabit after R.P.F.C.No.11 of 2003 8 securing a divorce or about the right/obligation to receive/pay maintenance. In a decree for divorce a mensa et toro which is the equivalent of a decree for judicial separation the spouses continue to be man and wife. That marital nexus continues without interruption. Marital obligations remain intact. But the matrimonial indiscretions of cruelty, adultery and desertion for a period of 2 years on the part of the guilty spouse entitles the other for a decree for divorce a mensa et toro. Such spouse gets freedom from bed and board. Such spouse has no obligation to share his/her bed or table with the other. The guilty spouse cannot thereafter insist that the other must share bed or board with him or her. Under the English law which was followed in India such a decree of divorce a mensa et toro was possible. But in India after Section 22 of the Act was enacted, such a decree cannot be passed. But a decree for judicial separation can be passed which will have the effect of a decree for divorce a mensa et toro. Under many other pieces of matrimonial legislation a decree for judicial separation would entitle the decree holder spouse to a decree for divorce if there is no resumption of cohabitation for specified period after the decree for judicial separation. But under the Indian Divorce Act R.P.F.C.No.11 of 2003 9 such a ground for divorce is not recognised specifically under Section 10. 13. Thus a decree for judicial separation u/s 22 of the Act can be claimed by a spouse who wants freedom from the other - to avoid the matrimonial obligation to cohabit. Freedom from the obligation to share bed and board can be claimed by a spouse from the other if one of the 3 grounds of - cruelty, adultery and desertion, can be established. The petition under S.22 makes this intention clear and manifest that the petitioner does not want to share bed and board with his spouse. The very filing of a petition for judicial separation and the securing of a decree eloquently declare the unwillingness of the petitioner/decree holder to cohabit with the offending spouse. The allegation may be cruelty, adultery or even desertion on the part of the other but the petitioner/decree holder u/s 22 declares his unwillingness to continue to cohabit. 14. Though there is no specific provisions under the Indian Divorce Act it must be held that it is possible for the spouses to later move the Court to vacate the decree for judicial separation passed u/s 22 and resume cohabitation. Though there is no specific provision in Chapter V of the Act to so vacate such a decree obtained after contest, such relief must R.P.F.C.No.11 of 2003 10 certainly be held to be possible by straining the language of S.26 or de hors the specific provisions of the Act. The power to grant a decree under S.22 must be held to take within its sweep the power to reverse the same also. Any contra view may entail the pernicious consequence of the willing spouses being unable to resume cohabitation later because of the tyranny of the earlier decree for judicial separation. My intention is only to note that inspite of a decree for judicial separation the spouse can be willing to resume cohabitation. At any given point of time thereafter (after the decree for judicial separation) it will hence be relevant to ascertain the attitude of the spouse. A spouse guilty of desertion and has suffered a decree of judicial separation may change his/her attitude and can be willing to cohabit. One who has secured such a decree may change his mind and may choose to settle disputes She/he can offer to resume cohabitation. While ascertaining the cause of separate residence even after a decree for judicial separation it is hence relevant to ascertain the attitude of the spouses. My attempt has only been to satisfy myself that an anterior decree for judicial separation in itself will not be the be all and end all when we attempt to ascertain the contumacious responsibility of the spouses for present separate residence. The cause of such R.P.F.C.No.11 of 2003 11 separate residence at present and the responsibility for the same will still have to be enquired into and ascertained, wherever necessary. 15. It will now be apposite to extract Section 125 Cr.P.C. “Section 125 Cr.P.C: Order for maintenance of wives, children and parents -- (1) If any person having sufficient means neglects or refuses to maintain-- a) his wife, unable to maintain herself, or b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or d) his father or mother, unable to maintain himself or herself, 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 or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: [Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such R.P.F.C.No.11 of 2003 12 proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] Explanation--For the purpose of this Chapter,-- (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. [(2) Any such allowance for the maintenance or interim maintenance and expenses of proceedings shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceedings, as the case may be.] (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 in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment of sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless R.P.F.C.No.11 of 2003 13 application be made to the Court to levy such amount within a period of one year from the date on which it became 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 for the maintenance or the interim maintenance and expenses of proceedings, 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. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” (emphasis supplied) 16. The scheme of Section 125 Cr.P.C clearly shows that the claim of a wife for maintenance has to be allowed if the following ingredients are proved. i) That the wife is unable to maintain herself; R.P.F.C.No.11 of 2003 14 ii) That the husband has sufficient means to pay maintenance to the wife and iii) The husband neglects or refuses to maintain the wife. 17. The neglect or refusal referred to in Section 125(1) Cr.P.C is only of the obligation to maintain the wife. If no maintenance is paid either negligently or delierately, S.125 (1) comes into play. The reasons for non payment of maintenance is irrelevant u/s 125(1). Neglect or refusal to maintain exists if there is non payment of maintenance - whether deliberately or negligently whatever be the cause. Separate residence by a wife without just ground or without sufficient reason does not militate against the fact of neglect or refusal to maintain. Neglect or refusal to maintain exists whenever there is breach of the obligation to maintain whether negligently or deliberately whether there be justifiable and sufficient reasons or not for separate residence. To satisfy S.125(1) the reason for neglect or refusal to maintain is irrelevant. The fact of neglect or refusal to maintain alone is relevant u/s 125(1) Cr.P.C. 18. Wherever the wife is, the liability to pay maintenance under Section 125 Cr.P.C exists. This aspect of the matter was considered by a Division Bench of this Court in A.S.N.Nair v. Sulochana [1981 KLT 568]. It will be useful to advert to the R.P.F.C.No.11 of 2003 15 observations in para.8 of the said judgment, which I extract below: “Normally a husband is liable to maintain his wife, whether she resides with him or elsewhere. If her residence elsewhere is on account of her refusal to live with him and discharge her marital obligations, his obligation to maintain her ceases. But if her refusal to live with him is justifiable, his liability to maintain her will not cease. If it is the husband who leaves his wife, and neglects her, then also his liability to maintain her in the form of payment of separate maintenance will subsist.” (emphasis supplied) 19. A husband can successfully resist the claim u/s 125(1) for maintenance of a wife residing separately only if he comes within the sweep of the second proviso to Section 125 (3) Cr.P.C, which I have already extracted above. Where she resides separately and the husband wants to resist the claim for maintenance on that ground, he must necessarily make an offer satisfying the second proviso to Section 125(3) Cr.P.C to maintain her on condition that she lives with him. In spite of such offer made by him, if she refuses to live with him, then and only then, does the Magistrate have the duty to consider the grounds of refusal stated by her. If the Magistrate is satisfied R.P.F.C.No.11 of 2003 16 that there is such a bona fide offer on the part of a husband, he may still pass an order under Section 125 Cr.P.C, only if there is just ground offered by the wife to justify separate residence. No order shall be granted in her favour if there is no just ground. The language in which the second proviso to Section 125(3) Cr.P.C is couched is, according to me, of crucial significance. When the claim is filed, the husband has to offer to maintain the wife on condition that she lives with him. Only if she spurns that offer can she be said to refuse to live with him. Only then need the Court consider the reasons advanced by her. It is crucial to note that the simple present tense is used in the second proviso to Section 125(3) Cr.P.C and that clearly shows that the offer and the refusal must be contemporaneous with the claim for maintenance. An offer and refusal at some point of time in the distant past may not attract the second proviso to Section 125 (3) Cr.P.C at all. Both the offer and the refusal - going by the words “offers” and “refuses” in simple present tense used in the second proviso to Section 125 Cr.P.C makes it eloquently clear that such offer and refusal is not to be events of the past and must be in presenti and be contemporaneous with the claim for maintenance filed under Section 125 Cr.P.C. R.P.F.C.No.11 of 2003 17 20. This is also evident from the language of Section 125 (4) Cr.P.C which also stipulates that the wife shall not be entitled to receive any maintenance allowance “if without any sufficient reason the wife refuses to live with her husband”,. The simple present tense used in Section 125(4) Cr.P.C when it refers to the refusal by the wife must also convey convincingly that such refusal is not to be reckoned as an event of the past and must certainly be contemporaneous with the claim for maintenance raised under Section 125 Cr.P.C. 21. We thus have to understand