http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3

PETITIONER:

SMT. VANAMALA

Vs.

RESPONDENT:

SHRI H.M.RANGANATHA BHATTA

DATE OF JUDGMENT27/07/1995

BENCH:

AHMADI A.M. (CJ)

BENCH:

AHMADI A.M. (CJ)

SEN, S.C. (J)

CITATION:

1995 SCC (5) 299 JT 1995 (5) 670

1995 SCALE (4)660

ACT:

HEADNOTE:

JUDGMENT:

THE 27TH DAY OF JULY, 1995

PRESENT:

Hon'ble the Chief Justice

Hon'ble the Mr. Justice S.C.Sen

Mr. S. N. Bhat, Adv. for the Appellant

Mr. K. R. Nagaraja, Adv. for the Respondent.

J U D G M E N T

The following Judgment of the Court was delivered:

Smt. Vanamala

V.

Shri H.M. Ranganatha Bhatta

J U D G M E N T

AHMADI, CJI

Special leave granted.

The facts in brief reveal that the appellant married

the respondent some time in 1970 and then gave birth to two

issues from the said wedlock. Unfortunately, her married

life was not smooth and in 1980 divorce by mutual consent,

was obtained under Section 13-B of the Hindu Marriage Act.

While granting divorce by mutual consent, no order in regard

to maintenance or alimony was made. The decree is silent on

that count. Few years later the appellant filed an

application under section 125 of the Code (hereinafter

called 'the Code') seeking maintenace from the respondent.

The learned Magistrate dismissed the application holding

that a divorcee woman was not entitled to maintenance once

it is found that the divorce was by mutual consent. Against

that order the appellant filed a Revision Application to the

Sessions Court. The learned Sessions Judge came to the

conclusion that the appellant was entitled to maintenance

notwithstanding the divorce by mutual consent and remanded

the matter to the Trial Court for determining the quantum of

maintenance. Against this order of the learned Sessions

Judge, the respondent preferred a Revision Application

before the High Court and the High Court by the impugned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3

judgment and order dated 19.8.1991 set aside the order of

the learned Sessions judge upholding the view taken by the

learned Magistrate and dismissed the application. It is

against that order that the present appeal has been

preferred.

Section 125 of the Code makes provision for the grant

of maintenance to wives, chaildren 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 (b) 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 has 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:-

(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 women to live with her

husband? Similarly there would be no question of the husband

and wife living 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.

Counsel for the appellant also pointed out that some of

the High Courts had taken a similar view. Reference was made

to the case of Kongini Balan Vs. M. Visalakshy, 1986 (92)

Criminal Law Journal 697 (Kerala), wherein it was held that

a wife who obtains a divorce by mutual consent cannot be

denied maintenance by virtue of Section 125 (4) of the Code.

Similar view was taken in Krishan Kumar Vs. Kiran, 1 (1991)

DMC 248 (Madhya Pradesh) wherein it was held that the

expression 'living separately by mutual consent' does not

cover cases of those living separately due to divorce. The

same view was expressed in M. Ramakrishna Reddy Vs. T.

Jayamma and Another, 1992 (98) Criminal Law Journal 1368. In

that case divorce was obtained by mutual consent on the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3

ground of incompatibility and thereafter the woman was

living separately, it was held that this could not be

construed to be an agreement for living separately by mutual

consent and hence the woman was entitled to maintenance. We

think these decisions are in conformity with the plain

language of sub-section (4) of section 125 which we have

construed hereinbefore. The contention raised by the counsel

for the husband is, therefore, unsustainable. The High Court

was, therefore, clearly wrong in reversing the order passed

by the Sessions Judge. In the result, this appeal succeeds,

The impugned order of the High Court dated 19th August, 1991

is set aside. The order of the learned Sessions Judge dated

5th September,1988 is restored. The respondent will pay

Rs.5,000/- by way of cost.