Wife Can Be Granted Maintenance U/S 125 CrPC Even If Decree For Restitution Of Conjugal Rights Is Passed Against Her: Allahabad HC

In a significant observation, the Allahabad High Court has ruled that there is no bar under Section 125 Cr.P.C. to grant maintenance to a wife, even against whom, a decree for restitution of conjugal rights has been passed. 

The Bench of Justice Brij Raj Singh further stressed that it would be very harsh to refuse maintenance on the ground of a decree of restitution of conjugal rights passed in favor of the husband.

The bench observed thus while dealing with a criminal revision plea filed by a woman (Kiran Singh) against the impugned award of maintenance order passed by the Principal Judge Family Court, Sultanpur under Section 125 Cr.P.C.

The case in brief

Revisionist (wife) got married to the opposite party no.2 (Husband) in February 2007. After their marriage, the husband and his family members allegedly started harassing her for dowry, and thereafter, he deserted her in October 2021 and since then she has been living with her parents.

Against this backdrop, she moved an application under Section 125 Cr.P.C. before the court below seeking maintenance from the Husband on the ground that she has no source of income, whereas her husband is earning 30,000/- per month.

On the other hand, it was the Husband's version that the revisionist deserted him and she even aborted a child in August 2007 without taking him into confidence. It was further objected in the reply that revisionist does not want to live in the house of the opposite party no.2.

The Husband also moved a plea for restitution of conjugal rights which was decided in his favor ex parte, however, the Husband didn't pursue execution proceedings. In view of this, recording some minor contradiction in the statement of revisionist, and on the basis of the same, the wife's case had been found not fit for maintenance in May 2019.

Under these circumstances, the High Court had to deal with the issue as to whether the revisionist wife would be entitled to maintenance.

Court's observations 

At the outset, the Court noted that the court below had observed that the revisionist had knowledge about the case for restitution of conjugal rights but she did not appear. Further, the court below had also inferred that the revisionist does not want to live with her husband.

In view of this, the HC, taking into account Section 125 of CrPC, noted that it would be very harsh to refuse maintenance on the ground of a decree of restitution of conjugal rights passed in favor of the husband.

"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 Court added.

Holding thus, the Court, allowing the revision in part, remanded the matter back to the Court below and set aside the impugned order. The Court directed the court below to decide the following issues (after affording an opportunity to the parties):

- 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.

Case title - Smt.Kiran Singh v. State Of U.P. And Anr [CRIMINAL REVISION No. - 896 of 2019]

Case Citation: 2022 LiveLaw (AB) 209

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