अल्लाहाबाद हाई कोर्ट ने तलाक के बाद भी सेक्शन 125 के तहत भरण‑पोषण का अधिकार मान्य किया

The Allahabad High Court, Lucknow Bench, has held that a woman who has been divorced by her husband on the ground of desertion can still claim maintenance under Section 125 of the Code of Criminal Procedure, 1973, provided she has not remarried and is unable to maintain herself.

Justice Ram Manohar Narayan Mishra observed that the grant of divorce on the ground of desertion does not, by itself, disentitle a divorced wife from seeking maintenance for the period after dissolution of marriage.

The Court accordingly set aside the order of the Family Court, Sultanpur, which had rejected the wife's maintenance claim in its entirety, and remitted the matter for fresh consideration.

Wife alleged dowry harassment and husband's second marriageThe revision was filed by Suneeta against the order dated 22.12.2018, passed by the Principal Judge, Family Court, Sultanpur, in a maintenance proceeding under Section 125 CrPC.

According to the wife, the marriage had been solemnised during her childhood, and she was sent to her matrimonial home after the gauna ceremony. Her husband subsequently joined the Indian Army. She alleged that after returning home in 2007, her husband and his family members subjected her to harassment and demanded Rs 1 lakh, a motorcycle and a colour television as additional dowry. She further alleged that an attempt was made to set her on fire.

The wife also claimed that when her husband returned from Bangalore in 2008, he informed her that he had contracted a second marriage and brought another woman to his parental home. She claimed that she was subsequently left at her parental home and was refused maintenance.

The husband, on the other hand, admitted the marriage and gauna but claimed that the wife had deserted him and was unwilling to live with him at his parental home. He denied the allegations of dowry demand and cruelty and claimed that he had always been willing to maintain her. He also stated that he had filed proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

Family Court rejected maintenance claimThe Family Court found that the wife was the legally wedded spouse of the husband and that there was no sufficient proof of her alleged independent income. However, it relied upon the fact that 15% of the husband's salary had been deducted pursuant to proceedings before the Army authorities and paid towards maintenance. The Family Court also found inconsistencies in the wife's allegations concerning dowry harassment and cruelty. It concluded that she had failed to establish a sufficient and reasonable cause for living separately from her husband and consequently dismissed her application under Section 125 CrPC.

Army maintenance payments created conflicting recordBefore the High Court, it emerged that the Army authorities had sanctioned deduction of 15% of the husband's salary for maintenance. A July 2011 communication stated that the amount was sanctioned for the maintenance of the parties' son and was to be remitted to the wife. The record, however, contained conflicting communications regarding whether the deduction was intended for the wife and child or only for the child.

The Court also noted that the maintenance arrangement through the Army authorities came to an end after the husband was discharged from service on December 31, 2018. In 2019, the Army authorities informed the wife that maintenance could not be granted from the husband's pension and advised her to approach the civil court for maintenance.

Husband obtained ex-parte divorce on ground of desertionA significant development was that the husband subsequently obtained an ex-parte decree of divorce under Section 13 of the Hindu Marriage Act on 25.09.2014, taking the ground of desertion against the wife. The High Court noted that the husband's service records subsequently showed another woman, Neelam Yadav, as his wife. The husband's brother also stated in evidence that he had a second wife named Neelam.

The Court therefore proceeded to examine whether the divorce decree based on desertion prevented the wife from claiming maintenance after the dissolution of marriage.

Supreme Court precedent protects maintenance claim of divorced wifeThe High Court relied substantially upon the Supreme Court's decision in

Rohtash Singh v. Smt. Ramendri, AIR 2000 SC 952. In that case, the Supreme Court considered whether a woman against whom a decree of divorce had been passed on the ground of desertion could claim maintenance under Section 125 CrPC.

The Supreme Court held that although the marital relationship comes to an end upon divorce, the divorced woman continues to fall within the expression âwifeâ under Explanation (b) to Section 125(1) CrPC for the limited purpose of claiming maintenance.

The Allahabad High Court noted that the Supreme Court had made a distinction between a wife's claim during subsistence of marriage and the claim of a divorced wife. The Court observed that if a divorced wife is unable to maintain herself and has not remarried, she can claim maintenance from her former husband. The fact that the divorce was granted on the ground of desertion does not, by itself, extinguish that entitlement for the post-divorce period.

Maintenance entitlement begins from date of divorceApplying this legal position, the High Court held that even if the revisionist was not entitled to maintenance for the period prior to the divorce on account of the findings concerning desertion, she could seek maintenance as a divorced wife after the decree dated 25.09.2014.

The Court observed:

âthe revisionist is entitled to seek maintenance from her husband after divorce which has been effective since 25.09.2014.âThe High Court also found that no independent income sufficient to maintain the wife had been established on record. It therefore held that the Family Court's finding that she was unable to maintain herself did not require interference.

The Court separately considered the maintenance claim of the parties' son, Ayush. It noted that maintenance had been provided through the Army authorities between 07.10.2008 and 31.12.2018. Therefore, the husband could not be made liable twice for the same period to the extent that maintenance had actually been received through the Army authorities.

The High Court held that the son was entitled to maintenance from the date of filing of the maintenance petition until attaining majority, excluding the period for which maintenance had already been received through the Army authorities.

The High Court set aside the Family Court's order and remitted the maintenance proceedings for fresh adjudication. It directed both parties to file affidavits disclosing their assets, income and liabilities in accordance with the Supreme Court's directions in

Rajnesh v. Neha, (2021) 2 SCC 324.

The Family Court was directed to decide the matter expeditiously, preferably within six months, after permitting the parties to lead further evidence if considered necessary.

Pending the fresh determination, the High Court directed the husband to pay Rs 4,000 per month as interim maintenance to the wife. Any amount paid pursuant to the High Court's earlier interim order was directed to be adjusted against the arrears ultimately determined by the Family Court.

Allowing the criminal revision, the Court concluded that the Family Court's rejection of the maintenance claim in toto could not be sustained and required reconsideration in light of the legal position governing maintenance to divorced wives under Section 125 CrPC.

(The author of this article, Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)

Powered by Nyaya 247 News