The story goes thus. The man divorces the woman (mutual or otherwise). And they lived happily ever after (separately, of course).
End of the story?
NAH!…not even close.
Let us start again.
The story goes…the man divorces the woman. The woman demands financial maintenance from her ex-husband! after the divorce- claiming it as a matter of right as the wife! of the man, she just divorced.
And if you are beginning to raise your eyebrows….then stop! Because, as we will see later, she is absolutely correct and legally allowed to do so.
|Law recognizes wife as a status, not merely a relation|
Welcome to the next 5 minutes of understanding how as per the law- In India – Legally, A wife is a wife…is a wife…is a wife..is a wife….even after divorce.
First, some ingredients of relevant law regarding Maintenance
Sub-section (4) of Section 125 Cr. P.C. provides as under:-
“(4) 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.”
The principal contention is that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act an order for maintenance could not have been passed in favour of the respondent on account of Sub-section (4) of Section 125 Cr. P.C.
Under this provision, a wife is not entitled to any Maintenance Allowance from her husband …
1) if she is living in adultery
2) if she has refused to live with her husband without any sufficient reason
3) 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 exists and not where it has come to an end.
Let us take all the circumstances individually:
1)t 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.
What is Adultery?
Adultery is the sexual intercourse of two persons, either of whom is married to a third person.
This clearly supposes the existence of a marriage between the husband and wife and if during the existence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.
But in this case, the marriage is not existing–so no question of Adultery.
|Adultery as a crime is possible only when a marriage exists|
2) 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 existence of marital relations between the parties.
If the marriage exists, the wife is under a legal and moral obligation to live with her husband and to fulfill the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband.
But in this case–no marriage is left (divorce!)….so no obligation etc.
And in the similar breath…condition no.3 i.e.living separately by mutual consent is immaterial as now there is a Divorce decree passed by a competent court.
So, now what is left?
In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed can claim Maintenance Allowance under Section 125 Cr. P.C
The decree for divorce was passed and since then, she is under no obligation to live with the petitioner.
But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be “wife” within the meaning of Section 125 Cr.P.C.
…..on account of Explanation (b) to Sub-section (1) which provides as under:-
“Explanation. – For the purposes of this Chapter –
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.”
On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband.
The Bottom line……..
Legally, A wife is a wife…is a wife…is a wife..is a wife….even after Divorce till the time she remarries or (God forbid! she dies)
Supreme Court of India