1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 187-DB of 2010 (O&M) DATE OF DECISION: 16.2.2010 *** Subhash .. Appellant VS. Anita .. Respondent CORAM: HON'BLE MR. JUSTICE MEHTAB S. GILL. HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Arvind Kashyap, Advocate for the appellant. *** ARVIND KUMAR, J. Delay condoned, for the reasons mentioned in the application. The appellant is aggrieved with order dated 4.12.2009 passed by the Judge, Family Court, Gurgaon, by dint of which he has been directed to pay a sum of Rs.1500/- per month from the date of filing of the petition, as maintenance under Section 125 Cr.P.C. to the respondent-wife. We have heard learned counsel for the appellant and have gone through the paper book carefully. The only argument that has been addressed by the learned counsel for the appellant is that during pendency of the petition before the Court below, an ex-parte decree of divorce has already been passed in favour of the petitioner and against the respondent-wife on the ground of desertion and as such she ceases her right to claim maintenance under Section 125 Cr.P.C. There is no merit in this contention. A woman has two distinct right from maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another 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 2 remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her. The issue, raised by learned counsel for the appellant, is no more res integra. In Rohtash Singh Vs. Ramendri (Smt.) 2000(2) RCR (Crl.) 286 (SC), the question which came up for consideration was whether a wife against whom a decree for divorce has been passed on the ground of desertion of the husband can claim maintenance under Section 125 of the Code and how far can the plea of desertion be treated to be an effective plea in support of the husband's refusal to pay her maintenance allowance. Their Lordships in para 10 of the judgment observed as under:- “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 Cri LJ 36 (Cal)). The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.” Thus, in view of the legal position enumerated above, it cannot be said that the respondent was not entitled to the maintenance from the petitioner. There is no dispute that there should be parity between the income and status of the petitioner with the amount of maintenance awarded to the respondent for her survival, had she been living in the company of the former. A perusal of the impugned order reveals that none of the parties 3 produced any proof with regard to their income. Therefore, treating the petitioner as a labourer, which he himself claims to be, his income was assessed as Rs.3500/- per month, out of which he was directed to pay an amount of Rs.1500/- to the respondent, which cannot be said on higher side, especially in the present scenario of high rise in the cost of living. There is no illegality of perversity in the impugned order. The petition is without any merit and is accordingly dismissed. (MEHTAB S. GILL) (ARVIND KUMAR) JUDGE JUDGE February 16,2010 Jiten