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Wife Who Has Challenged Divorce Decree & Hasn't Accepted Permanent Alimony U/S 25 Hindu Marriage Act Can Seek Maintenance U/S 125 CrPC: Allahabad HC
Shivang
21 Feb 2022 6:35 PM IST
The Allahabad High Court recently allowed the claim for maintenance of a wife under Section 125 of CrPC, despite the grant of divorce decree by the Family Court, while noting that an appeal against the said decree was pending before the Court and the same had not attained finality.Justice Syed Aftab Husain Rizvi discarded the husband's plea that a divorced wife cannot claim maintenance...
The Allahabad High Court recently allowed the claim for maintenance of a wife under Section 125 of CrPC, despite the grant of divorce decree by the Family Court, while noting that an appeal against the said decree was pending before the Court and the same had not attained finality.
Justice Syed Aftab Husain Rizvi discarded the husband's plea that a divorced wife cannot claim maintenance under Section 125 CrPC. It also rejected the argument that since the Family Court has awarded permanent alimony under Section 25 of the Hindu Marriage Act, no maintenance under CrPC can be awarded. It observed,
"It is clear that as O.P. No. 2 (wife) has not accepted the amount of alimony as she has challenged the divorce decree in appeal and appeal is pending and in that circumstances she can not accept the amount of alimony. So it can not be said that she has sufficient financial resources as permanent alimony has been awarded to her. At present she has no source of income and financial support to maintain her and comes in the category of destitute."
The Court was considering a revision petition filed by the husband against the judgment and order passed by the Family Court in which the court granted Rs. 25 lacs as permanent alimony under Section 25 of the Hindu Marriage Act, while passing the decree of divorce in the husband's favor under Section 13 of Hindu Marriage Act.
The counsel for the Opposite Party No. 2 (wife) stated that she has not accepted the amount of alimony and the same is lying in the court and stated that accepting the alimony would amount to the acceptance of the decree of divorce. It was also contended that the Opposite Party No. 2 has never requested or filed an application U/s 25 of the Hindu Marriage Act to claim permanent alimony and the court has granted it on its own volition.
Findings
At the outset, the Court noted that in the present case divorce petition has been filed by the husband. It is being contested by the wife who has preferred an appeal and also has not accepted the permanent alimony which is lying deposited in the court below.
It then referred to the case of Rajnesh Vs. Neha where the Supreme Court has issued guidelines on payment of maintenance in matrimonial matters and has held that a wife can make a claim for maintenance under different statutes.
It then referred to the case of Rohtash Singh Vs. Ramendri [(2000) 3 SCC 180], where the Apex Court had held that if the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance.
Applying the aforesaid preposition of law on the present set of facts, the Court opined that it is clear that the wife has not accepted the amount of alimony as she has challenged the divorce decree in appeal which is pending.
In view of the peculiar facts and circumstances of the case, the court held that the impugned order does not suffer from any infirmity or illegality and hence, dismissed the Criminal Revision.
Case Title: Tarun Pandit v. State of U.P. and Another
Citation: 2022 LiveLaw (AB) 59
