In a significant observation, the Allahabad High Court noted that a wife is entitled to maintenance under Section 125 of CrPC, even if a decree of restitution of conjugal rights has been passed against her.
The High Court bench of Justice Brij Raj Singh further emphasized that it would be very harsh to refuse maintenance to the wife on the ground of a restitution of conjugal rights decree which has been passed in favour of the husband.
Allahabad High Court was hearing a criminal revision plea filed by a woman challenging impugned award of maintenance order passed by the Principal judge Family Court, Sultanpur under Section 125 of Code of Criminal Procedure.
They got married in February 2007. Her husband and in-laws allegedly started harassing her for dowry. She alleged that her husband deserted her in October 2021 and since then she has been living with her parents.
She moved an application seeking maintenance under Section 125 of CrPC on the ground that she doesn’t have a source of income whereas her husband is earning Rs 30,000/month.
However, the husband submitted that the wife deserted him and also aborted a child in August 2007 without taking him to confidence.
The husband had filed a petition for restitution of conjugal rights which was decided in favour of ex parte. However, the husband didn’t pursue execution proceedings. Taking into consideration a minor contradiction in the revisionist’s statement and on the basis of restitution of conjugal rights decree, the wife was not found fit for maintenance in May 2019.
“It is also settled law that even after divorce wife is entitled for maintenance and since the revisionist is legally wedded wife of opposite party no.2, he has to maintain her. It is admitted on record that wife is residing with her parents and has no source of income. Therefore, award for maintenance cannot be denied,” the bench noted.
Allowing the revision, the High Court bench remanded the matter back to Court to decide the following issues:
- Whether the Husband deserted the revisionist wife,
- Whether the wife has any source of income and whether she is able to maintain herself,
- Whether the Husband has a sufficient source of income,
- Whether the revisionist-wife is entitled to maintenance, if yes, how much and from which date.