Wife Entitled To Maintenance Even If She Unilaterally Divorces Her Husband If She Is Unable to Maintain Herself: Calcutta High Court

In the concerned case, the petitioner had challenged an order dated 18th November, 2017 passed by the Additional Sessions Judge, 5th Court, Murshidabad whereby maintenance under Section 125 of the CrPC had been denied to the petitioner.

The Additional Sessions Judge had rejected such a prayer for maintenance on the ground that the petitioner had herself unilaterally granted divorce to the respondent i.e. her husband. Thus, she could not be considered to be a 'destitute' as she had 'wilfully neglected' her husband. The Sessions Court had also reaffirmed the ruling that since the petitioner was allegedly found to be in a compromising position, such a claim for maintenance could not be granted to her.

"Learned Magistrate has observed that conduct of wife was not inspiring and she was not considered to be a destitute as wilful neglect on part of her husband so to maintain her was not being proved, for the same maintenance in her favour was denied. I do not find that any interference is required by this Court regarding such observation. This Court concurs with the observation of the Court below that the revisionist/wife who voluntarily granted talak is not entitled to claim maintenance from her husband as because I do not find any act of violence or cruelty that the opposite party has perpetrated upon the revisionist so to compel her to leave her matrimonial home", the Additional Sessions Judge had observed.

Justice Bibek Chaudhuri noted that under the inherent power of the High Court as envisaged under Section 482 of the CrPC, the High Court could rectify any wrong committed by the Trial Court as well as the Revisional Court. Reflecting on the illegality of the impugned order, Justice Chaudhuri observed,

"The Learned Trial Judge committed illegality when she held that a divorced wife is not entitled to get maintenance. The petitioner moved in revision for redrassal of the said wrong but she was again wronged by the Learned Revisional Court on the ground that the petitioner was allegedly found in compromise situation with a third person by the opposite party and accordingly she was not dutiful to her husband"

The High Court also reiterated that the law is absolutely settled to the extent that a divorced wife shall always be entitled to maintenance till her remarriage if she is unable to maintain herself. It was also observed that the impugned order had not made any determination as to whether the petitioner had the means to maintain herself independently. Accordingly, the impugned order was set aside and the Sessions Court was directed to issue a new order on the basis of the facts and circumstances of the case.

Case Title: Rehena Khatoon v. Jargis Hossain