R. Basant, J.@mdashWhat is the effect and consequences of a decree for judicial separation under S. 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 S. 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 02.09.1979. A child was born in the wed-lock. That child has already attained majority. The spouses started separate residence from 15.07.1980. 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 10.4.1996. 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 minor daughter. An appeal was preferred and by judgment dated 03.04.1997 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 S. 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 PW1. She proved Exts.Pl to P3. Ext.Pl is a copy of the petition filed by the husband for judicial separation. Ext.P2 is the order passed by the Division Bench dated 03.04.1997 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 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 S. 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 separation 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 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 S. 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 S. 125 Cr. P.C. would be maintainable. This is evident from the judgment dated 3.4.1997 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 the parties that the disposal of this appeal will not prejudice the right of the respondent/wife to claim maintenance separately under S. 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 S. 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 S. 125 Cr. P.C. It is contended that if a wife whose husband has secured a decree for divorce against his wife under S. 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
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 separation to a decree for divorce. S. 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 S. 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 Ss. 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 S. I25 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. S. 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 Ss. 22 to 26, does not at all refer specifically to the obligation to cohabit after 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 S. 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 such a ground for divorce is not recognised specifically under S. 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 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 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 S. 125 Cr. P.C.
S. 125 Cr. P.C. Order for maintenance of wives, children and parents - (I) 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 sub-section, 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 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 purposes 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 if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless 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 S. 12 5 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;
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 S. 125(1) Cr. P.C. is only of the obligation to maintain the wife. If no maintenance is paid either negligently or deliberately, 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(l)Cr. P.C.
18. Wherever the wife is, the liability to pay maintenance under S. ,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 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 S. 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 S. 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 that there is such a bona fide offer on the part of a husband, he may still pass an order under S. 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 S. 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 S. 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 S. I25 (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 S. 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 present and be contemporaneous with the claim for maintenance filed under S. 125 Cr. P.C.
20. This is also evident from the language of S. 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 S. 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 S. 125 Cr. P.C.
21. We thus have to understand the concept of refusal by the wife to live with her husband. Both Ss 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. S. 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 S. 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 S. 125 Cr. P.C. What can entail rejection of the claim is only "REFUSAL" by the 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 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 S. 125(3) and S. 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.
23. To understand what can amount to a refusal under S. 125(4) and 125(5) Cr. P.C, we have the second proviso to S. 125(3) Cr. P.C. which makes it crystal 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 Mrs. Justice K. Hemam Zeenath v. Sulfiker AH 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 present to entail rejection of a claim for maintenance u/S. 125 Cr. P.C.
24. The scheme of S. 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 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 S. 125(3) Cr. P.C.) and sufficient reason (under S. 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.
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 uncontroverted 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.
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 S. 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 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. Chap. IX of the Code deals exhaustively with the 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 Chap. 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 S. 22 of the Act, it cannot certainly be held to be sufficient to deny the claim for maintenance of a wife under S. 125 Cr. P.C.
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 S. 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. S. 125(4) and S. 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 S. 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 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 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 if 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. 1 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 S. 125(3) as also S. 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 Jhe 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 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 S. 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, i.e. 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 S. 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.
