Is Wife Entitled To Maintenance When Decree Of Restitution Of Conjugal Rights Is Against Her? Delhi High Court Answers

The Delhi High Court has ruled that mere presence of a decree of restitution of conjugal rights against the wife does not disentitle her from claiming maintenance from her husband  - when it is due to his own conduct she is not able to stay with him.

Emphasising that every case seeking compensation in matrimonial dispute has to be dealt with according to its facts and circumstances, Justice Swarana Kanta Sharma said that every judgment, though filed under the same provision, cannot be painted and penned with the same stroke of a brush.

"Before parting with this case, this Court wants to observe that the Judges dealing with such cases should keep in mind the objective behind Section 125 Cr.P.C ... and the need to give a dignified existence to people ... who need to be maintained lawfully by the persons bound by law ... to maintain them expeditiously and with sensitivity," the Court added.

Section 125 of Code of Criminal Procedure states that any person who has sufficient means to maintain himself cannot deny maintenance to wife, children and parents if they unable to maintain themselves.

The Court therefore held that mere existence or non compliance of a decree of restitution of conjugal rights by itself would not debar or disentitle the wife within Section 125 of the Code from getting an order of maintenance.

The Court passed the verdict while dealing with a wife's petition challenging a family court's order denying her grant of maintenance on the ground that the husband had obtained a decree for restitution of conjugal rights in his favour.

The Family Court passed the impugned order after placing reliance on a 2013 ex-parte decree passed under Section 9 of the Hindu Marriage Act.

It was observed that since the decree was not challenged by the wife in a higher court, it had become final and since she had virtually deserted the husband, she was not entitled to any maintenance from him. However, the Family Court said that the the two children were entitled to get maintenance from their father.

In appeal, the High Court pulled up the husband for his conduct of playing "hide and seek" before the Trial Court as he knew about ex-parte evidence being led in the case but still did not enter appearance on various occassions. It also noted that while the family court granted several opportunities to the husband for cross-examining the wife, he did not do so and the evidence led by wife remained uncontroverted.

The Court also expressed displeasure with the family court for not appreciating the "uncontroverted evidence" led by the wife regarding harassment and physical injuries suffered by her due to which she was not staying with the husband.

"Unfortunately, the legal battle which started in 2009 for grant of maintenance was decided against her after nine long years in the year 2018. Irrespective of the fact that it was decided against her, the fact that it took nine long years to decide a petition under Section 125 Cr.P.C speaks a lot about the efforts one has to put in and the need for sensitization to dispose of such cases at the earliest," the Court said.

It added "The husband in this case on the one hand, wants the children and the wife back as stated in the petition under Section 9 HMA and on the other hand, states that he himself is completely dependent on his parents. It is strange that though he has a decree of restitution of conjugal rights and the wife is willing to live with him he did not take her back and rather started questioning the paternity of the children. These aspects should not have escaped the attention of the Trial Court."

Observing that husband's liability to maintain wife and children arises from solemn duty towards them, the Court also said that an ex-parte decree for restitution of conjugal rights held by the husband wherein no execution proceedings are filed will not be a bar to wife's claim for maintenance.

"While appreciating cases under Section 125 Cr.P.C., the Trial Court has to be sensitive and cautious that each case has to be decided on its own peculiar facts and circumstances as edifice of every such case is different," the Court said.

Accordingly, while setting aside the impugned order, the Court directed the family court to pass a judgment afresh on the basis of evidence led before it and to disposed of the same within a period of two months.

The plea was accordingly disposed of.

Title: X v. Y

Citation: 2022 LiveLaw (Del) 900