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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION NO. 2122/2013
BETWEEN:
SMT. PARVATEVVA @ ROOPA
W/O. CHANNABASAPPA BALOJI
AGE: 31 YEARS,
OCC: HOUSEHOLD WORK
R/O: MANTODI, TAL: SAVANUR
DIST: HAVERI.
... PETITIONER
(BY SRI VIDYASHANKAR G. DALWAI, ADVOCATE)
AND :
CHANNABASAPPA
S/O. BHARMAPPA BALOJI
AGE: 39 YEARS,
OCC: AGRICULTURE
R/O: ATTIGERI, TAL: SHIGGAON
DIST: HAVERI.
... RESPONDENT
(BY SRI NAVEEN
WODEYAR, ADVOCATE)

CHATRAD FOR

SRI

MAHESH

THIS CRIMINAL REVISION PETITION IS FILED UNDER

SECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET

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ASIDE THE ORDER DATED 21.11.2012 PASSED BY THE
SESSIONS
JUDGE
(FAST
TRACK)
HAVERI,
IN
CRL.RP.NO.131/2010 AND ETC.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The respondent wife has lodged a petition under
Section 125 of Code of Criminal Procedure, 1973 (hereinafter
referred to as Cr.P.C. for brevity) on the file of J.M.F.C. 1st
Court, Savanur, seeking for maintenance from petitioner
husband.

The

trial Court

after evaluating the

entire

materials on record and considering the objections of

husband has allowed the petition by granting maintenance
of Rs.500/- per month from the date of application i.e., from
14.06.2006. Being aggrieved by the order passed by learned
Magistrate, the husband has preferred a criminal revision
petition before Sessions Judge (Fast Track), Haveri in
Crl.R.P. No.131/2010. The learned Sessions Judge after re
appreciating the materials on record has reversed the order

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passed by learned Magistrate and dismissed the petition
under Section 125(1) of Cr.P.C. by exercising the powers
under Section 397 of Cr.P.C.

Being aggrieved by the said

order, the wife has preferred this revision petition before this
Court.
2.

On perusal of the objection statement filed by

husband before the trial Court, it can be seen that the only
ground taken by husband is that, a divorce petition was filed
by husband against the wife in M.C. No.7/2006.

The

Matrimonial Court i.e., Senior Civil Judge Haveri, has

granted a decree of divorce on the ground that the wife
herself has deserted the company of husband.

It is the

contention of husband that his wife has deserted him and

she has no justifiable ground to claim maintenance from her
divorced husband. The said contention was turned down by
learned Magistrate relying upon a decision of the Supreme
Court reported in

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AIR 2000 Supreme Court 952 between Rohtash
Singh v. Smt. Ramendri and others.
3.

I have heard the arguments of learned counsel

for petitioner and also learned counsel for respondent.

4.

The pivotal point that arises for consideration is

that
Whether the divorced wife is entitled for
maintenance though the decree of divorce is
granted to the husband on the ground of
desertion by wife?

5. The Appellate Court has relied upon the judgments

in order to base its order.
2003 Crl.L.J. 4470 between Deb Narayan Halder vs
Smt. Anushree Halder.
In the said judgment it has been held that

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If demand of dowry and cruelty by
husband is not supported by evidence on record
and reasons given for her ill-treatment are not
existed and if wife leaves the matrimonial home
without any justifiable ground then she is not
entitled for any maintenance.
1995 Crl.L.J. 1187 (Calcutta High Court) between
Rabindranath Roy.
The Calcutta High Court has held that
If the decree of divorce is passed on the
ground of desertion, then wife is not entitled for
maintenance.
1981 Crl. L. J. 1467 (Punjab & Haryana High
Court) between Teja Singh v. Smt. Chhoto.
The Civil Court had clearly found that it
was she who had deserted her husband that
means it was she who had been refusing to live
with him. Such being the case by virtue of subsection (4) of Section 125 of the Code of Criminal
Procedure, she would not be entitled to any
maintenance.

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6. On perusal of the ruling reported in
AIR (SC) - 2003 3174 between Deb Narayan Haider
v. Anushree Haider
7. In the above judgment the Honble Supreme Court
has observed at paragraph 2 that, the husband and wife got
married on 24.02.1985 and out of the wedlock a son was
born to them.

They continued to live together for many

years at different places and the respondent - wife left her

matrimonial home along with her son and came to reside
with her parents in Calcutta and she has stated that she
was tortured over the years. Therefore, during the existence
of marriage, she has filed a petition under Section 125 of
Cr.P.C.
8. The above said ruling is not exactly applicable
because of the simple reason that during the existence of
marriage it is the bounden duty of wife to live with her
husband if she deserts her husband and lives separately
without any reasonable or justifiable cause then according

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to Section 125(4) of Cr.P.C. she is not entitled for
maintenance. In that particular case the status of wife, after
divorce on her desertion, is not at all discussed under
section 125(4) of Cr.P.C.

In the other two rulings relied

upon by learned Sessions Judge it has been observed that

when the marriage is in existence between husband and
wife, then wife has to live with her husband and she cannot
desert her husband without any reasonable or justifiable
cause.
9. In this background Section 125 of Cr.P.C has to be
gone through according to its object and spirit. Section
125(4) of Cr.P.C reads thus

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.

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10. If the above said provision is applied to this case, it
is not the case of husband that the wife is living in adultery
nor that husband and wife have been living separately by
mutual consent, during the subsistence of their marriage. It
is the case of husband that after divorce the wife has been
living separately, without any sufficient reason she has
refused to live with her husband.

Wife living with her

husband itself postulates that the relationship of husband

and wife is still subsisting and without any sufficient reason
if the wife refuses to live with her husband or if she is living
in adultery, then only Section 125(4) of Cr.P.C is attracted.
Now coming to the other ruling though relied upon by the
Sessions Judge, but not properly understood, it is worth to
note the relevant portion of the judgment, which is reported
in
AIR (SC) 2000 0 952 between Rohtash Singh vs.
Ramendri.

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The Honble Supreme Court at paragraphs 3 and 4
observed as under :
Under this provision, a wife is not entitled
to

any

Maintenance

Allowance

from

her

husband if she is living in adultery or if she has

refused to live with her husband without any
sufficient reason or if they are living separately
by mutual consent. Thus, all the circumstances
contemplated by Sub-section (4) of section 125,
Cr. P.C. presuppose the existence of matrimonial
relations. The provision would be applicable
where the marriage between the parties subsists
and not where it has come to an end. Taking the
three circumstances individually, it will be
noticed that the first circumstance on account of
which a wife is not entitled to claim Maintenance
Allowance from her husband is that she is living
in

adultery.

Now,

adultery

is

the

sexual

Intercourse of two persons, either of whom is

married to a third person. This clearly supposes
the

subsistence

of

marriage

between

the

husband and wife and if during the subsistence

of marriage, the wife lives in adultery, she

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cannot claim Maintenance Allowance under
Section 125 of the Code of Criminal Procedure.

The second ground on which she would

not be entitled to Maintenance Allowance is the
ground of her refusal to live with her husband
without

any

sufficient

reason.

This

also

presupposes the subsistence of marital relations

between the parties. If the marriage subsists, the
wife is under a legal and moral obligation to live
with her husband and to fulfil the marital
obligations. She cannot, without any sufficient
reason,

refuse

"Sufficient

to

reasons"

live

with

have

her

been

husband.
interpreted

differently by the High Courts having regard to

the facts of individual cases. We are not required
to go into that question in the present case as
admittedly the marriage between the parties
came to an end on account of a decree for
divorce having been passed by the Family Court.
Existence of sufficient cause on the basis of
which the respondent could legitimately refuse to
live with the petitioner is not relevant for the
present case. In this situation, the only question
which survives for consideration is whether a

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wife against whom a decree for divorce has been
passed on account of her deserting the husband
can claim Maintenance Allowance under Section
125, Cr.P.C. and how far can the plea of
desertion be treated to be an effective plea in
support of the husband's refusal to pay her the
Maintenance Allowance.
(emphasis supplied)
11. The Honble Supreme Court at paragraph 9A has
extracted the observations made by its earlier decision in AIR 1978 SC 1807 between Ramesh Chander
Kaushal v. Mrs. Veena Kaushal.
This provision is a measure of social
justice and specially enacted to protect women
and children and falls within the constitutional
sweep of Article 15(3) reinforced by Article 39.
We have no doubt that sections of statutes
calling for construction by

Courts

are not

petrified print but vibrant words with social

functions to fulfil. The brooding presence of the
constitutional empathy for the weaker sections
like

women

and

children

must

inform

interpretation if it has to have social relevance.

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So viewed it is possible to be selective in picking
out that interpretation out of two alternatives
which advances the cause - the cause of the
derelicts.
9A. Claim for maintenance under the first
part of Section 125, Cr.P.C. 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 Subsection (1) of Section 125, Cr. P.C. If the divorced
wife is unable to maintain herself and if she has
not

remarried,

Maintenance

she

will

Allowance.

The

be

entitled

Calcutta

to

High

Court had an occasion to consider an identical

situation where the husband had obtained
divorce on the ground of desertion by wife but
she was held entitled to Maintenance Allowance
as a divorced wife under Section 125, Cr.P.C.
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.
The Allahabad High Court also, in the instant
case, has taken a similar view. We approve

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these decisions as they represent the correct
legal position.

12. On meaningful understanding and reading of the

above said ruling of Honble Supreme Court, it can be
undoubtedly said that all the circumstances contemplated
under sub-section (4) of Section 125 of Cr.P.C. presupposes
the existence of matrimonial relationship. However, a wife
against whom a decree of divorce has been passed, even on
account of she deserting her husband, she can still claim
maintenance under Section 125 of Cr.P.C. The Honble
Supreme Court has clarified the legal position that, even
after the divorce at the instance of wifes desertion she is not
debarred from claiming maintenance under Section 125 of
Cr.P.C. The husband can only challenge the claim of wife
under Section 125 of Cr.P.C. on the other grounds which are
enumerated under Section 125(4) of Cr.P.C. that is to say,
after divorce, if the wife is living in adultery or if the wife is
re-married

then

only

the

husband

is

absolved

from

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maintaining his divorced wife. In view of the above facts and
circumstances, I am of the opinion that the learned Sessions
Judge has committed a serious error in not looking into the
judgment of Honble Supreme Court in detail and finding
out what exactly the law has laid down by the Honble
Supreme Court.

Therefore, the judgment passed by

revisional Court is bad in law and the same is liable to be

dismissed.

The orders passed by learned Magistrate

awarding a sum of Rs.500/- as maintenance to the wife is in

accordance with law. Though the amount awarded is very
poultry, in my opinion, it cannot be enhanced. In the above
said circumstances, I am of the opinion that this revision
petition deserves to be allowed. Hence, I pass the following :
ORDER
The revision petition is hereby allowed.
Consequently, the judgment passed by
Session Judge Haveri in Crl. R.P. No.131/2010
dated 21.11.2012 is hereby set aside.

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The order passed by Judicial Magistrate
First Class, Savanur in Crl. Misc. No.61/2006
dated 15.07.2010 is hereby restored.
A sum of Rs.5,000/- deposited towards
litigation expenses before this Court is permitted
to be withdrawn by revision petitioner wife.

SD/JUDGE

hnm/