Chirukandoth Poujil Leela vs Mambally Bhaskaran

S.A. Kader, J.—This is a petition to set aside the order of the Principal Sessions Judge, Pondicherry in Crl. R.P. No. 26 of 1983 confirming the order of the Sub Divisional Magistrate, Pondicherry in M.C. No. 4 of 1982 dismissing the Petitioner''s claim for maintenance.

The Petitioner is the divorced wife of the Respondent. The divorce was effected by an order of the Court in M.O.P. No. 9 of 1980 on the file of the First Additional District Judge, Pondicherry. Subsequent to the divorce, she filed M.C. No. 4 of 1982 on her behalf and on behalf of her six years old minor son for maintenance before the Sub-Divisional Judicial Magistrate, Mahe. The learned Sub-Divisional Judicial Magistrate granted maintenance to the minor son in the sum of Rs 80 per month, but dismissed the claim of the Petitioner herein, on the ground that the divorce had been granted against the Petitioner on the ground of desertion of her husband. An earlier application for maintenance filed by the Petitioner during the subsistence of her marriage with the Respondent has also been dismissed on the ground that she wilfully refused to live with her husband. Taking this into consideration the learned Sub-Divisional Judicial Magistrate refused maintenance to the Petitioner. On revision, the Sessions Judge found that after divorce it was immaterial whether she refused to live with her husband or not, but, however, dismissed the revision on the ground that the Petitioner did not establish that she was unable to maintain herself. It is against this order the Petitioner has come forward with this petition.

Section 125 of the Crl. P.C., 1973, under which divorced women are entitled to claim maintenance from their husbands, is a bold step in the right direction. Under Explanation (b) to the Section "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. This is one of the most beneficial provisions in recent time, a landmark in social legislation. So long as the divorced woman remains unmarried, her former husband is bound to maintain her. The question of her desertion or refusal to live with her husband does not arise for consideration. It is a statutory obligation imposed upon the husband to maintain his divorced wife so long as she remains unmarried and the only condition is that she must be unable to maintain herself. The learned Sessions Judge was, therefore, right in holding that she was entitled to maintenance and the question of her desertion did not arise for consideration.

The learned Sessions Judge, has, however, erred in holding that the Petitioner failed to establish that she was unable to maintain herself. In her application before the Court of the Sub-Divisional Judicial Magistrate, Mahe, for maintenance she has clearly stated that she and her minor son had no means for their maintenance and they were at the mercy of her parents. What more is necessary to show that she is unable to maintain herself? It is not the case of the Respondent that the Petitioner has means of her own and is able to maintain herself. In the circumstances, the conclusion of the learned Sessions Judge that the Petitioner is not entitled to claim maintenance is untenable. I hold that the Petitioner herein is entitled to claim maintenance so long as she remains unmarried.

It is alleged by the Petitioner herein that the Respondent is employed in Palloor Spinning Mills and is drawing a salary of Rs. 750 per mensem and that he owns property the annual income of which is Rs. 2,000. The learned Sub-Divisional Judicial Magistrate has pointed out that these facts are not disputed. The Respondent has got two children through the Petitioner and he is paying maintenance of Rs. 70 to the first son and Rs. 80 to the second child. Taking this into consideration I hold that a sum of Rs. 125 per month as maintenance to the Petitioner will suffice to meet the ends of justice.

In the result, the petition is allowed, the order of the Principal Sessions Judge, Pondicherry is set aside and the Respondent is directed to pay maintenance in the sum of Rs. 125 per month to the Petitioner from the date of the petition.