REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).232-233 OF 2015

DR. SWAPAN KUMAR BANERJEE                   APPELLANT(S)

                               VERSUS

THE STATE OF WEST BENGAL & ANR.             RESPONDENT(S)

J U D G M E N T

DEEPAK GUPTA, J.

The  short  question  raised  in  these  appeals  is

whether a wife, who has been divorced by the husband, on

the ground that the wife has deserted him, is entitled to

claim  maintenance  under  Section  125  of  the  Code  of

Criminal Procedure, 1973 (Cr.P.C.).  

We may refer to the relevant portion of Section 125

of the Code of Criminal Procedure:-

"125.  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

x x x x x x x x x

x x x x x x x x x

x x x x x x x x x

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Explanation.–  For  the  purposes  of  this Chapter,-

x x x x x x x x x

(b) "wife"  includes  a  woman  who  has  been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) x x x x x x x x x

(3) x x x x x x x x x

(4) 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.

x x x x x x x x x”

It is the contention of Mr. Debal Banerjee that in

terms of sub-section (4), no wife, who has deserted her

husband can claim maintenance under Section 125 of the

Cr.P.C. His further submission is that since in terms of

the  explanation  wife  includes  a  divorced  woman,

therefore,  even  a  wife  who  has  been  divorced  on  the

ground of desertion would not be entitled to maintenance

in view of sub-section (4). Mr. Debal Banerjee has very

candidly placed before us three judgments of this Court

which take a view contrary to the one being canvassed by

Mr. Banerjee before us.  

In Vanamala Vs. H.M. Ranganatha Bhatta  1, this Court

1. (1995) 5 SCC 299

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dealt with a similar issue and held as follows:

"3. Section 125 of the Code makes provision for the grant of maintenance to wives, children and  parents.  Sub-section  (1)  of  Section  125 inter  alia  says  that  if  any  person  having sufficient  means  neglects  or  refuses  to maintain his wife unable to maintain 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 not exceeding Rs 500 in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time  to  time  direct.  Clause  (i)  of  the Explanation  to  the  sub-section  defines  the expression 'wife' to include a woman who has been  divorced  by,  or  has  obtained  a  divorce from, her husband and has not remarried. In the instant  case  it  is  not  contended  by  the respondent  that  the  appellant  has  remarried after the decree of divorce was obtained under Section 13-B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent had neglected or refused  to  maintain  her.  Counsel  for  the respondent,  however,invited  our  attention  to sub-section (4) of Section 125, which reads as under:

125.(4) No  wife  shall  be  entitled  to receive  an  allowance  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.

On a  plain reading  of this  Section it  seems fairly clear that the expression 'wife' in the said  sub-section  does  not  have  the  extended meaning  of  including  a  woman  who  has  been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there  can be  no question  of a  divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the woman to live with her husband? Similarly there would be no  question  of  the  husband  and  wife  living

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separately  by  mutual  consent  because  after divorce there is no need for consent to live separately.  In  the  context,  therefore,  sub- section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view,  therefore,  this  contention  is  not  well founded."

Thereafter, in  Rohtash Singh Vs.  Ramendri & Ors.  2

this Court took a similar view:

"11.  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 a woman has two 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  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."

This view, which was taken by two-Judge Benches has

been confirmed in Manoj Kumar Vs. Champa Devi  3 by a three

judge  bench,  though,  no  specific  reasons  have  been

recorded in the judgment. Mr. Debal Banerjee urged that

the  matter  requires  reconsideration.  We  are  not  in

2. (2000) 3 SCC 180 3. (2018) 12 SCC 748

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agreement with him for two reasons. Firstly, the view

taken in the first two judgments has been confirmed by a

three-judges Bench and, therefore, we cannot refer it to

a larger Bench.  

Even  otherwise,  this  view  has  been  consistently

taken by this Court and the said view is in line with

both the letter and spirit of the Cr.P.C.  

No  doubt,  as  urged  by  Mr.  Debal  Banerjee,

explanation II to Section 125 of the Cr.P.C. by deeming

fiction  includes  a  divorced  woman  to  be  a  wife  and,

therefore, a woman who has been divorced by her husband

can  still  claim  maintenance  under  Section  125  of  the

Cr.P.C. The question is how we should read the provisions

of sub-section (4) in this regard, especially when we

deal with those women, against whom a decree for divorce

has been obtained on the ground that they have deserted

their husband. Once the relationship of marriage comes to

an end, the woman obviously is not under any obligation

to live with her former husband. The deeming fiction of

the divorced wife being treated as a wife can only be

read for the limited purpose for grant of maintenance and

the deeming fiction cannot be stretched to the illogical

extent that the divorced wife is under a compulsion to

live with the ex-husband. The husband cannot urge that he

can divorce his wife on the ground that she has deserted

him and then deny maintenance which should otherwise be

payable to her on the ground that even after divorce she

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is not willing to live with him. Therefore, we find no

merit in the contention of Mr. Debal Banerjee.

Coming to the merits of the case, the matrimonial

dispute started with the husband filing a petition of

judicial separation in 1992, though, it was alleged that

since 1987 the wife had deserted him. In 1997 a petition

for  divorce  was  filed  and  the  divorce  was  granted  in

2000. During this period from 1987 to 2000 when the wife

was living separately from her husband she did not file

any petition for grant of maintenance. Even during the

divorce proceedings though an application under Section

24 of the Hindu Marriage Act, 1955 was filed but it seems

that the same was either dismissed for non-prosecution or

was not pressed. It was not decided on merits in any

event.  

After  the  divorce  was  granted,  according  to  the

appellant he got remarried after a year and it was only

thereafter that the wife filed a petition for grant of

maintenance.  That,  according  to  us,  will  make  no

difference because it is for the wife to decide when she

wants to file a petition for maintenance. She may have

felt comfortable with whatever earnings she had upto that

time or may be she did not want to precipitate matters

till she was contesting the divorce petition by filing a

claim for maintenance. Whatever be the reason, the mere

fact that the wife did not file a petition for grant of

maintenance  during  the  pendency  of  the  matrimonial

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proceedings,  is  no  ground  to  hold  that  she  is  not

entitled to file such a petition later on.  

The next issue raised was that the wife being a

qualified  architect  from  a  reputed  university  i.e.

Jadavpur University, Calcutta would be presumed to have

sufficient income. It is pertinent to mention that as far

as the husband is concerned, his income through taxable

returns has been brought on record which shows that he

was earning a substantial amount of Rs.13,16,585/- per

year and on that basis Rs.10,000/- per month has been

awarded as monthly maintenance to the wife. No evidence

has been led to show what is the income of the wife or

where the wife is working. It was for the husband to lead

such evidence. In the absence of any such evidence no

presumption  can  be  raised  that  the  wife  is  earning

sufficient amount to support herself.  

In this view of the matter, we find no merit in the

appeals, which are accordingly dismissed.

Pending application(s), if any, stands disposed of.

...................J.  (DEEPAK GUPTA)

...................J.  (ANIRUDDHA BOSE)

New Delhi; September 19, 2019

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ITEM NO.104               COURT NO.13               SECTION II-B

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal No(s).232-233/2015

DR. SWAPAN KUMAR BANERJEE                          Appellant(s)                                 VERSUS

THE STATE OF WEST BENGAL & ANR.                    Respondent(s)

Date : 19-09-2019 These appeals were called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE DEEPAK GUPTA          HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Debal Banerjee, Sr. Adv. Mr. Amit Pawan, AOR Mr. Abhishek Amritanshu, Adv. Mr. Anand Nandan, Adv. Mr. Akshat Srivastava, Adv. Mr. Hassan Zubair Waris, Adv. Mr. Rohit Rajershi, Adv.

                   For Respondent(s)

Mr. Suhaan Mukerji, Adv. Ms. Astha Sharma, Adv. Mr. Amit Verma, Adv. Mr. Abhishek Mandhanda, Adv. Ms. Kajal Dalal, Adv. Mr. Naveen Kumar, Adv. M/S. Plr Chambers And Co., AOR

Mr. Sudip Sanyal, Adv. Mr. Arun K. Sinha, AOR Mr. Sinha Shrey Nikhilesh, Adv. Mr. Nayon Dubey, Adv. Mr. Rakesh Singh, Adv.

                              UPON hearing the counsel the Court made the following                              O R D E R

The appeals are dismissed in terms of the signed order.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT)                                   (RENU KAPOOR) COURT MASTER (SH)                              BRANCH OFFICER

(signed order is placed on the file)

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