M.P. Mary vs V. Varghese

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 the concept of refusal by

the wife to live with her husband. Both Sections 125(4) and 125

(5) as also the second proviso to S.125(3) Cr.P.C are couched in

identical expressions and language which insist that sufficient

reason must be shown by the wife who refuses to live with her

husband. Section 125(4) and 125(5) as also the second proviso

to S.125(3) Cr.P.C show clearly that such sufficient reasons must

be there, both when the order is claimed under Section 125(1)

Cr.P.C and when the claim is sought to be enforced later after

securing the order. Either way there must be refusal and

sufficient reason to justify refusal to entitle the wife to claim

maintenance and enforce the same under Section 125 Cr.P.C.

What can entail rejection of the claim is only "REFUSAL" by the R.P.F.C.No.11 of 2003 18

wife. Refusal by her to live with her husband is sine qua non for

rejection of the claim for maintenance of the wife. If there be

refusal then the Court shall proceed to consider the grounds for

such refusal.

22. The second proviso to S.125(3) Cr.P.C as also S.125(4)

Cr.P.C, it is now trite must telescope into S.125(1) Cr.P.C and

must be read as provisos to S.125(1) Cr.P.C. That is on the

rationale that no court shall pass an order which is liable to be

cancelled or which cannot be enforced on the date on which is is

passed. The argument that an order u/s 125(1) must invariably

be passed if the circumstances referred to therein do exist

without regard to the second proviso to Section 125(3) and

Section 125(4) Cr.P.C is without any substance. The contention

that the second proviso will apply only after an order is passed

u/s 125(1) Cr.P.C and that too at the stage of execution only is no

more acceptable. That is clear from the expression "an order

under this section" used in the said proviso as explained in the

decision of the Division Bench in A.S.N.Nair (supra) that S.125

(4) Cr.P.C and the proviso to S.125(3) Cr.P.C must be read as a

proviso to S.125(1) Cr.P.C. The discussions and observations in

para.20 of A.S.N.Nair (supra) conclude the issue. R.P.F.C.No.11 of 2003 19

23. To understand what can amount to a refusal under

Section 125(4) and 125(5) Cr.P.C, we have the second proviso to

Section 125(3) Cr.P.C, which makes it crustal clear that it is

incumbent that the husband must offer to maintain the wife on

condition of her living with him. Only when such offer is made,

and that offer is not accepted can a wife be held to refuse to live

with him. When there is no offer, there can only be a failure to

live with the husband and no refusal to live with the husband.

This aspect of the matter has been lucidly considered by

Ms.Justice K.Hema in Zeenath v. Sulfiker Ali [2008(3) KLT

757]. I wholly concur with the view that refusal to live with the

husband in contra distinction to failure to live with the husband

can occur only when an offer is made in defence of claim for

maintenance. Past failure to live with the husband and

withdrawal from his society earlier cannot be reckoned as

"refusal" in presenti to entail rejection of a claim for

maintenance u/s 125 Cr.P.C.

24. The scheme of Section 125 Cr.P.C is thus very

evident. A husband is liable to maintain his wife wherever she is,

provided she is unable to maintain herself, provided he is having

sufficient means and provided he does not maintain her whether

negligently or deliberately. Her claim can be resisted by the R.P.F.C.No.11 of 2003 20

husband if he makes an offer to maintain her on condition that

she lives with him. Once he shows that he has made a

contemporaneous bona fide offer and she refuses to live with

him, the burden is shifted to the wife to show sufficient or just

reasons to prove that her separate residence is justified. Only

when such an offer is made and the same is rejected can she be

said to refuse to live with her husband and only thereafter her

burden to prove just ground (under the second proviso to Section

125(3) Cr.P.C) and sufficient reason (under Section 125(4)

Cr.P.C) would arise. The two mean the same, it is further

clarified by the Division Bench. See A.S.N.Nair (supra) para.8

25. That takes us to the next question whether in the

instant case there has been such an offer by the husband and

refusal by the wife. The counter statement has been gone into in

detail. There is not a semblance of an offer to maintain the wife

on condition that she lives with him. The husband significantly

did not take the witness stand. In the course of evidence, there

is thus no offer whatsoever made by him to maintain his wife on

condition that she lives with him. When the wife/PW1 was cross

examined also, there is not a scintilla of a suggestion that the

husband is willing to maintain her on condition that she lives

with him.

R.P.F.C.No.11 of 2003 21

26. The securing of a decree for judicial separation is by

itself sufficient to eloquently convey that the husband is not

willing to reside with the wife. It is significant that he has

chosen not to claim and secure a decree for restitution of

conjugal rights, but has instead chosen to secure a decree for

judicial separation. That conveys that the husband is not

interested in insisting that the wife should reside with him or

that he is willing to maintain her on condition that she lives with

him. That he had earlier sought divorce on the ground of cruelty

before he succeeded in securing a decree for judicial separation

is of great relevance. His unwillingness to cohabit with his wife,

the claimant is thus eloquent from the totality of circumstances.

I have already taken note of the fact that despite an anterior

decree for judicial separation, the spouses can be willing to

cohabit and the reasons for their separate residence at the time

when the claim for maintenance is raised will have to be

ascertained. It is eloquently clear that the respondent/husband

is unwilling to cohabit with the wife now. The un controverted

Ext.P3 (which was not of course specifically pleaded) for which

no explanation has been offered as also the failure of the

husband to take the witness stand make it crystal clear to me

that the husband is unwilling to cohabit with his wife now. R.P.F.C.No.11 of 2003 22

27. In this view of the matter, it is evident that there has

been no offer to maintain the wife nor has there been a refusal

contemporaneous with the staking of the claim under Section

125 Cr.P.C. The claimant wife was not hence obliged to show

just ground or sufficient reason to justify her separate residence.

If any such just ground or sufficient reason be necessary to

justify her separate residence on the date of the claim, the

decree for judicial separation is a sufficient reason to justify such

separate residence. Her husband by his conduct had declared

that he is not interested in living with her and had secured a

decree for judicial separation.

28. It is contended that the wife by her anterior conduct

has sufficiently shown that she has no sufficient reason or just

ground to reside separately. That is at an anterior point of time.

He has not made any offer to maintain her on condition that she

lives with him in response to the claim for maintenance u/s 125

Cr.P.C. She has not refused to live with him when he made an

offer to maintain her on condition that she lives with him. That

is what should have been established by him to successfully

resist the claim for maintenance.

29. That takes me to the next limb of the contention of the

husband that a decree for judicial separation u/s 22 by itself is a R.P.F.C.No.11 of 2003 23

sufficient reason to him to refuse to pay maintenance u/s 125

Cr.P.C. His refusal is justified u/s 125(1) Cr.P.C, it is contended.

I have already observed that u/s 125(1) "neglects or refuses to

maintain" only means the fact of non payment of maintenance -

whether negligently or deliberately. S.125(1) does not refer to

the grounds for refusal to maintain. It is only the 2nd proviso to

S.125(3) and S.125(4) (at the initial stage) and 125(5) (at the

stage of execution) that deal with the grounds of the wife for

refusal and justification for the conduct of the husband for

refusal to maintain his wife.

30. Be that as it may, I shall now consider whether a

decree for judicial separation u/s 22 of the Act is by itself an

effective defence to a claim u/s 125 Cr.P.C. At the first instance

I do note that the purpose and the rationale of the Act and the

Code are totally different and distinct. While enforcement of

mutual matrimonial rights and obligations is the purpose of the

Act, Chapter IX of the Code of Criminal Procedure is founded on

the anxiety of the law to prevent vagrancy . Any attempt to

resolve the question whether a decree for judicial separation is

by itself an effective defence against a claim under S.125 Cr.P.C

cannot afford to ignore the totally different legislative goals and

destinations. Chapter IX of the Code deals exhaustively with the R.P.F.C.No.11 of 2003 24

endeavour to prevent vagrancy in society. The threat to peace,

harmony and order in society posed by vagrancy by irresponsible

individuals and the yearning of the system to avoid such threat is

the burning concern and the signature tune of Chapter IX of the

Code.

31. A decree for judicial separation u/s 22 of the Act can

be granted on the grounds of

i) Adultery;

ii) Cruelty; or

iii) Desertion for 2 years or upwards.

It will be advantageous now to consider whether a decree for

judicial separation on the above grounds can by itself operate as

a sufficient reason to deny the claim for maintenance.

32. An isolated act of adultery would entitle a spouse to a

decree for judicial separation, whereas under the Code to resist

the claim for maintenance of a wife, it has to be shown that she

is "living in adultery". If a husband secures a decree for judicial

separation on the ground of an isolated act of adultery under

Section 22 of the Act, it cannot certainly be held to be sufficient

to deny the claim for maintenance of a wife under Section 125

Cr.P.C.

R.P.F.C.No.11 of 2003 25

33. Similarly, cruelty of the wife may entitle the husband

for a decree for judicial separation. But the provisions of the

Code do show that the alleged cruelty of the wife is no reason

whatsoever to turn down the claim for maintenance under

Section 125 Cr.P.C. The refusal of the husband to live with the

wife on the ground that she is guilty of cruelty is not a defence

recognised by law to defeat her claim for maintenance u/s 125

Cr.P.C if she is willing to reside with him. Section 125(4) and

Section 124(5) do not recognise such a ground at all. I shall

come to the question of desertion little later. But it must be seen

that out of the 3 grounds which would entitle the husband for a

decree for judicial separation, 2 are certainly not sufficient by

themselves to entitle him to successfully resist the claim for

maintenance under Section 125 Cr.P.C. The grant of a decree

for judicial separation on the ground of desertion may, in an

appropriate case, have an impact on the claim for maintenance.

I shall advert to that aspect next.

34. If there be past matrimonial misconduct of desertion

for a period of 2 years, a husband may have secured a decree for

judicial separation. The securing of a decree for judicial

separation as indicated earlier clearly shows that the decree

holder is unwilling to cohabit. He has practically closed the R.P.F.C.No.11 of 2003 26

doors on resumption of cohabitation by securing a decree for

judicial separation and not one for restitution of conjugal society.

A wife who has suffered a decree for judicial separation,

obtained by her husband cannot obviously have recourse to S.26

of the Act. She may apply de hors the specific provisions of the

Act to modify/vacate the decree. Even if she has not done the

same, she may be willing to live with the husband. Unless the

husband is willing to accept her she cannot force herself on the

husband. The husband is already granted freedom from bed and

board by the decree for judicial separation. Such a woman can

certainly claim maintenance if she satisfies the other

requirements. If her husband wants to resist her claim for

maintenance, he has to offer to maintain her on condition that

she lives with him. If she is not willing, her reasons for refusal at

the time of the claim will have to be considered and appropriate

decision will have to be taken by the Court under second proviso

to S.125(3) or 125(4) of the Code. That she had failed to cohabit

at an earlier point of time unjustifiably cannot certainly be

reckoned as refusal and it cannot be reckoned that she "refuses"

to live with him without just ground or sufficient reason.

35. So reckoned, I am of opinion that a decree for judicial

separation is by itself no ground to refuse maintenance to a R.P.F.C.No.11 of 2003 27

claimant wife u/s 125 of the Code whatever be the basis of such a

decree. Of course where an offer is made by the husband in

proceedings u/s 125 Cr.P.C and the wife refuses to live with him

on identical grounds, the acceptability of which was earlier

considered by the competent Court which granted such decree,

the decree may of course be relevant. At any rate every decree

for judicial separation by itself is no effective defence to a claim

for maintenance u/s 125 of the Code.

36. I am, in these circumstances, satisfied that the

claimant/wife is definitely entitled for maintenance, no offer

having been made to her to maintain her on condition that she

lives with her husband and she having not refused such a

specific offer which must be shown to exist to attract the play of

the second proviso to Section 125(3) as also Section 125(4) and

125(5) of the Code.

37. We now come to the quantum of maintenance to be

awarded. I find that the claim is only for an amount of Rs.500/-

per mensem and the materials available on record clearly show

that the wife is unable to maintain herself. The petitioner is

employed and is having sufficient means to maintain his wife. As

on the date of the petition and as on the date of the impugned

order, I find that there is nothing to show that the husband is not R.P.F.C.No.11 of 2003 28

in a position to maintain his wife. Of course, the learned counsel

for the husband/respondent contends that the respondent is now

retired in January, 2008. The circumstances which have not

been pleaded or proved cannot be reckoned now. The option of

the husband to claim alteration of the amount under Section 127

Cr.P.C shall of course remain.

38. The claim has been pending from the year 1998. In

the facts and circumstances of the case, I am satisfied that

maintenance need be awarded only from the date of the

impugned order, ie. 23.09.2002.

39. In the result:

i) This R.P.F.C is allowed;

ii) The impugned order is set aside;

iii) The respondent is directed under Section 125 Cr.P.C

to pay maintenance @ Rs.500/- (Rupees Five hundred only) per

mensem to the claimant/wife from 23.09.2002, the date of the

impugned order.

I place on record my appreciation for the assistance

rendered to this Court by counsel for both sides.

(R.BASANT, JUDGE) rtr/-