IN-Abs/test-data/summary/3893.txt

Explanation (b) to section 125(1) of the Code of Criminal Procedure, 1973 provides that "wife" includes a woman who has been divorced by or has obtained a divorce from her husband and has not re married.
Section 127(3) (b) provides that where any order has been made under section 125 in favour of a woman who has been divorced by or has obtained a divorce from her husband, the Magistrate shall if he is satisfied that the woman has been divorced by her husband and has received, whether before or after the date of the said order, the whole of the sum which under any customary or personal law applicable to the parties, was payable on such divorce cancel such order in the circumstances stated therein.
The respondent (husband) married the appellant (wife) and had a son by her.
A few years later the respondent divorced his wife.
By a consent decree, in the suit filed by the wife, he transferred to her the flat in which she was living and agreed to pay mehar money.
The compromise stated that the "plaintiff declares that she has now no claim or right whatsoever against the defendant".
For some time thereafter they lived together but again separated.
The wife moved the magistrate under section 125 Cr.P. for grant of maintenance to her and her son.
This was granted.
On appeal the Sessions Judge held mat the Court had no jurisdiction under section 125.
The High Court dismissed the wife 's appeal.
On further appeal to this Court it was contended on behalf of the respondent that (i) section 125(4) would apply in the absence of proof that the wife was not living separately by mutual consent; (ii) to attract section 125 there must be proof of neglect to maintain the wife and (iii) no claim for maintenance in this case can survive in the face of the consent decree whereby mehar money had been paid and all claims adjusted.
Allowing the appeal the Court, G ^ HELD: Every divorcee, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current Code.
[78H] 1.
There is no force in the argument that the absence of mutual consent to live separately must be made out if the hurdle of section 125(4) is to be overcome.
The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill.
Divorce plainfully implies that the husband orders.
the wife out of the conjugal home.
[80D] 76 2.
The husband 's plea is his right to ignore.
So the basic condition of neglect to maintain is satisfied.
In this generous jurisdiction the broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof.
[80C] 3.
(a) The consent decree resolved all disputes and settled all claims then available.
The new statutory right which could not have been in the contemplation of the parties when they entered into the consent decree in 1962 had been created by the Code of 1973.
No settlement of claim which does not have the special statutory right of the divorcee under section 125 can operate to negate that claim.
[80F] (b) No husband can claim under section 127(3)(b) absolution from his obligation under section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance.
[81F] (c) Section 127 cannot rescue the husband from his obligation.
The scheme of Chapter IX has a social purpose.
Ill used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets.
Where the husband, by customary payment at the time of divorce, has adequately provided for the divorcee.
a subsequent series of recurrent doles is contra indicated and the husband liberated.
The key note thought is adequacy of payment which will take reasonable care of the wife 's maintenance.
[80H] (d) The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom.
No construction which leads to frustration of the statutory project can secure validation if the Court is to pay true homage to the Constitution.
The only just construction of the section is that Parliament intended divorcees should not derive a double benefit If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under section 125 then section 127(3) (b) subserves the goal and relieves the obligor.
not pro tanto but wholly the purpose of the payment "under any customary or personal law" must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself There must be a rational relation between the cum so paid and its potential as provision for maintenance.
[81B C] 4.
Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of article 15(3) must belight the meaning of the section.
The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure.