Sharadchandra Chandrashekhar vs Indubai Sharad Satbhai : 1978 Mah LJ 123 : (1978) 80 BomLR 69 : 1978 MLR 140 : 1977 LRC Online 2 (Bom)
Section 125(4)-Maintenance-Entitlement-A wife who has deserted her husband within the meaning of the Explanation to section 10(1) of the Hindu Marriage Act, is not entitled to apply under section 125 of CrPC-Impugned set aside-Application allowed.
Held : It is, however, open to a wife who is unable to maintain herself and her husband has sufficient means to maintain her but nevertheless neglects or refuses to do so, to make an application under Section 125, Criminal Procedure Code, 1973, and seek an order for maintenance, subject to the conditions and limitations of that section. Explanation (b) of Section 125(1) clarifies that even if she is a divorcee, she can claim maintenance provided she is not remarried. Sub-section (4) disentitles a wife to receive allowance in certain cases, one of them being "if, without any sufficient reason, she refuses to live with her husband". This sub-section governs the whole of Section 125. Now, in a case like the present one, when the civil Court has determined the issue of desertion and held that the wife has left her husband without reasonable cause and against his wish and without his consent, can it be said that she is still entitled to maintenance under Section 125 and not hit by Sub-section (4)? It is plain and simple that she has refused to live with her husband without any sufficient reason and, therefore, disentitled herself to receive maintenance under Section 125. The effect of the decree for judicial separation on this particular ground of desertion cannot be overlooked by the Magistrate dealing with an application under Section 125 because he has to bear in mind the disability created by Sub-section (4) of that section. The fact that a decree for judicial separation has been passed in favour of the husband on the ground of desertion means that the wife is guilty of refusing to live with her husband. In our judgment, Indubai is not entitled to maintenance under Section 125, Criminal Procedure Code, 1973, as she had no reasonable ground not to live with her husband. The approach of the learned Additional Sessions Judge overlooks the object and purpose of Sub-section (4) which also governs Sub-section (1) of Section 125. It is true that a divorcee is entitled to approach the Magistrate under Section 125 for speedy remedy. So could a wife against whom a decree for judicial separation is passed, but a wife who has deserted her husband within the meaning of the Explanation to Section 10(1) of the Hindu Marriage Act, 1955, as discussed above, is not entitled to apply under Section 125 of Criminal Procedure Code, 1973.