Calcutte HC: Even after grant of divorce, divorcee wife is entitled to grant a maintenance under CrPC 125
CRR No.2716 of 2012
In re: Arabinda Mallick
– And –
In the matter of : An application under Section 482 of the Code of Criminal Procedure, 1973.
Mr. Haradhan Banerjee,
Mr. Partha Pratim Mukherjee
…… For the Petitioner.
Present petition has been filed under Section 482 of the Code of Criminal Procedure praying that the impugned order dated 16th July, 2012 passed by Judicial Magistrate, Second Court at Sealdah in Miscellaneous Execution Case No.8 of 2012, be set aside, whereby Warrant of Arrest was issued against the petitioner.
Counsel for the petitioner contended that divorce was granted to the petitioner on the ground of desertion by the wife. Hence, divorced wife is not entitled to grant a maintenance.
This Court relying upon Rohtash Singh Vs. Ramendri (Smt) and Ors., (2000) 3 Supreme Court Cases 180 had already held that after grant of divorce, divorcee wife is entitled to grant a maintenance. It will be apposite to reproduce paragraph 10 of Rohtash Singh (supra) and the same reads as under: 2
” Claim for maintenance under the first part of Section 125 CrPC 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 CrPC. 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 the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC 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. Anjali Dasi.) 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. ”
At this stage, Counsel for the petitioner submits that this Court need not adjudicate the right of deserted wife to get maintenance as already Criminal Revision No.1251 of 2011 filed by the petitioner is pending in this Court. However, Counsel for the petitioner states that he will limit his prayer to urge that there is no justification for the trial Court to issue Warrant of Arrest as no notice was served upon the petitioner earlier. Counsel has further undertaken that petitioner shall appear before the trial Court on 14th August, 2012, date fixed for appearance.
In view of the undertaking given by the Counsel for the petitioner, present petition is disposed of by issuing a direction that the Warrant of Arrest issued against the petitioner be kept in abeyance till 14th August, 2012 to enable the petitioner to appear before the trial Court on the date fixed, i.e., 14th August, 2012. However, it is made clear that in case petitioner fails to appear before the trial Court on 14th August, 2012, trial Court shall be 3
well within its right to initiate all coercive action against the petitioner to secure his presence.
Let a photostat copy of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Counsel for the petitioner on usual undertakings.
( Kanwaljit Singh Ahluwalia, J. )