The Allahabad High Court has recently said that Section 125(1) Criminal Procedure Code clearly points that ‘wife’ includes a woman, who has been divorced or has obtained a divorce from her husband and has not re-married. The claim of maintenance can only be refused if she has received some compensation from her husband and the decree of the restitution of conjugal rights does not put bar in providing maintenance.
A single-judge bench of Justice Brij Raj Singh passed this order while hearing a Criminal Revision filed by Smt. Kiran Singh. The Criminal Revision has been filed against the impugned award of maintenance order dated 28.05.2019 passed by the Principal Judge Family Court, Sultanpur in Criminal Case under Section 125 CrPC.
Further prayer has been made that the opposite party no 2 (Husband) may be directed to pay an amount of Rs 15,000 to the revisionist and enable the revisionist to lead a true life in her parental house.
The counsel for the revisionist submitted that the revisionist filed an application under Section 125 CrPC before the court below, in which she stated that she was married to the opposite party no 2 on 25.02.2007 as per Hindu rites.
After marriage, opposite party no 2 and his family members started demanding a motorcycle and were harassing her for dowry. The revisionist was deserted by opposite party no 2 on 31.10.2021 and since then the revisionist is living with her parents.
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The counsel for the revisionist further submitted that the revisionist has no source of income whereas opposite party no 2 is working in Mumbai and earning Rs 30,000 per month. He also has agricultural property and thus has a sufficient source of income.
The counsel for the opposite party no 2 submitted that opposite party no 2 appeared before the Court and filed an objection mentioning that it is the revisionist, who deserted him and she also aborted a child on 18.08.2007 without taking him into confidence. It is further objected to in the reply that revisionists do not want to live in the house of the opposite party no 2.
The Court noted,
While passing the impugned order, the trial court framed 5 issues:-
(i) Whether the revisionist is married to opposite party no 2,
(ii) Whether the opposite party no 2 has deserted the revisionist,
(iii) Whether the revisionist has any source of income and whether she is able to maintain herself,
(iv) Whether the opposite party no 2 has sufficient source of income,
(v) Whether the revisionist is entitled for maintenance, if yes, how much and from which date.
So far issue no1 is concerned, there is no dispute that the revisionist and opposite party no 2 are wife and husband and they were married together. Issue nos 2, 3, 4 and 5 are interrelated.
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The Court further noted that,
The revisionist has specifically mentioned that opposite party no 2 deserted her. There is reference of the case of conjugal rights, which was decided ex-parte and the court below while taking note of the said exparte decree rejected the prayer for maintenance. The court below recorded some minor contradiction in the statement of revisionist and on the basis of the same, her case has been found not fit for maintenance. The court below also recorded the fact that on the basis of the statement of cross examination, it is not clear as to which date, revisionist went to her parents’ house.
It has been further noted by the court below that the revisionist had knowledge about the case for restitution of conjugal rights but she did not appear and court below has inferred that the revisionist does not want to live with her husband on the basis of some statements given in cross examination. Drawing such inference, the court below rejected the application for maintenance. It has been opined by the court below that since issue no 2 has been decided in negative, therefore, there is no need to give findings regarding financial status of revisionist and opposite party no 2.
The Court held,
Admittedly, there is no bar under Section 125 CrPC to grant maintenance to wife, even against whom, a decree for restitution of conjugal rights has been passed. It would be very harsh to refuse maintenance on the grounds of a decree of restitution of conjugal rights passed in favour of the husband. It is also settled law that even after divorce wife is entitled for maintenance and since the revisionist is the legally wedded wife of opposite party no 2, he has to maintain her. It is admitted on record that the wife is residing with her parents and has no source of income. Therefore, awards for maintenance cannot be denied.
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Section 125(1) CrPC clearly points out that ‘wife’ includes a woman, who has been divorced or has obtained a divorce from her husband and has not re-married. The claim of maintenance can only be refused if she has received some compensation from her husband and the decree of the restitution of conjugal rights does not put bar in providing the maintenance.
The Court said that the court below has not dealt the issue no 4 in relation to the source of income of opposite party no 2, therefore, in the revisional jurisdiction, I cannot conclude regarding the monthly income of opposite party no 2, which requires consideration afresh by the court below.
In view of the aforesaid discussion and legal aspect, the Court set aside the impugned order dated 28.05.2019.
“The matter is remanded back to the court below who shall determine Issue Nos 3, 4 and 5 and thereafter order will be passed accordingly. The revision is allowed in part. The matter is remanded back to the court below to decide the Issue Nos 3, 4 and 5, afresh after affording opportunity to the parties and pass fresh order keeping in view the observations made hereinabove. The said exercise will be done within six months .
Office is directed to communicate this order to the court below for necessary compliance, forthwith,” the order reads.