If Husband Fails To Adhere To Decree For Restitution Of Conjugal Rights, Wife Can Seek Interim Maintenance Before Executing Court: Karnataka HC

The Karnataka High Court has held that in the absence of a stay on the decree for restitution of conjugal rights (RCR), if the husband fails to take the wife back to the matrimonial home, then it would be open to the wife to seek interim maintenance for herself and their child even at the stage of execution of the decree. 

The Court was dealing with a challenge by the husband, against an order of the Family Court directing him to pay a sum of Rs 25,000 per month as interim maintenance for his wife and child upon the wife executing a decree for RCR when the husband failed to take her back to the matrimonial home. 

A single judge bench of Justice M Nagaprasanna said “If this Court had granted an interim order of stay of the decree of restitution of conjugal rights then it was open to the learned counsel for the petitioner to urge that contention. Since that has not happened and the husband has not taken the wife to the matrimonial house, it was open to the wife to seek interim maintenance for herself and the kid even at the stage of execution of the decree. No fault can be found with the order passed by the concerned Court in directing payment of interim maintenance.”

The court made the observation while rejecting the plea filed by a husband who had challenged the order of interim maintenance passed 08-10-2021 by the executing/family court.

It was argued by the husband that the court hearing the execution petition cannot consider any application filed before it for grant of interim maintenance as it could have only executed the decree of restitution of conjugal rights.

Further, it was argued that the petitioner was already paying maintenance and therefore, the amount directed to be paid of Rs 25,000 to the wife and the child is contrary to the law.

The wife contended that interim maintenance was appropriately ordered as it was for the executing Court to award such maintenance on the failure of the petitioner to adhere to the decree of restitution of conjugal rights.

The bench on going through the records noted that the concerned court came to conclude that the husband had failed to prove that he was subjected to cruelty and rejected the petition for divorce while decreeing that the wife was entitled to a decree of restitution of conjugal rights.

Accordingly, it noted that the decree for RCR was passed in favour of the wife, which though challenged, was pending adjudication and had not been stayed by the Court.

The court held that since the husband had failed to abide by the decree of RCR, the wife could have moved a prayer for interim maintenance before the executing court. 

Rejecting the claim of duplication of maintenance, the court said that the grant of interim maintenance in the matrimonial case, seeking dissolution of marriage, had become final inter-parties and was only paid till the decree of restitution of conjugal rights was passed by the concerned Court.

It was further noted that in another proceeding where the wife had instituted proceedings under the Domestic Violence Act, maintenance was paid to the wife up to the date of the decree of restitution of conjugal rights, as well.

The husband neither takes the wife back to the fold of the matrimonial house nor pays maintenance to the child and the wife. Therefore, he has left the two in the lurch, the Court held.

Noting that the categorical submission of the counsel for the husband was that the petitioner could not take the wife and the child back to the matrimonial house, the Court held that in such case, he cannot escape maintenance merely because he has challenged the order of restitution of conjugal rights before this Court.

Thus it held that since the petitioner had stopped paying maintenance in the Domestic Violence case or the matrimonial case, no fault could be found with the order of the concerned Court, since all other maintenance had been seized, and the only one granted was by the executing court.

Appearance: Advocate Biri Mary for Petitioner.

Citation No: 2024 LiveLaw (Kar) 64

Case Title: ABC and XYZ

Case No: Writ Petition No 2215 OF 2022

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